Heard Sri Mukul Tripathi, learned counsel for the revisionists and learned AGA in opposition.
A complaint case was instituted by Arif Ahmad against Nafees @ Bhurey and another as Complaint Case No.1460 of 2008 before Additional Chief Judicial Magistrate, court no.4, Ghaziabad. After due formality and conducting an inquiry, the accused persons were summoned in the aforesaid complaint case to stand trial for offences under Sections 323, 324, 504, 506 IPC, out of aforesaid sections, Sections 324, 506 are punishable with more than two years of imprisonment, therefore, procedure which Magistrate was required to undertake was that of warrant case. Since the complainant was not interested in prosecuting the accused in the estimation of the trial Magistrate, hence the complaint was dismissed in default by the trial Judge mentioning Section 256 Cr.P.C. Trial Judge, however did not pass any order either of acquittal or discharge of the accused.
Aggrieved by the order of simplicitor dismissal of his complaint, the complainant went up in revision before Sessions Judge, Ghaziabad, being Criminal Revision No.114 of 2011, Arif Ahmad Vs. State of U.P. and another. Sessions Judge, Ghaziabad, vide impugned order dated 8.6.2011 came to the conclusion that since warrant trial procedure was required to be undertaken, therefore, dismissal of a complaint by Magistrate, only amounts to discharge of the accused. After entertaining aforesaid revision, Sessions Judge allowed it vide aforesaid order and directed the matter to be reconsidered in accordance with law. It is this order by Sessions Judge that is under challenge in the instant revision.
Learned counsel for the revisionists submitted that since Magistrate has mentioned in its order that he has exercised power under Section 256 Cr.P.C., therefore, revision was not maintainable as under the aforesaid section, in absence of complainant, complaint has to be dismissed and the accused have to be acquitted and against acquittal of the accused, an appeal may be preferred before Sessions Judge under Section 378 Cr.P.C. He further submitted that entertaining of revision by Sessions Judge is without jurisdiction and, therefore, impugned order cannot be sustained.
Contention of the learned counsel for the revisionists is patently erroneous for following two reasons:
(1) That mere mentioning of Section a wrong 256 Cr.P.C., the order of dismissal of complaint simplicitor in a warrant trial case will not change the character of the order and will not take it out side the purview of Section 256 Cr.P.C.;
(2) That Magistrate in fact exercised power under Section 249 Cr.P.C. but while dictating the order wrongly mentioned Section 256 Cr.P.C. Under Section 249 Cr.PC. in absence of the complainant, a complaint can be dismissed and the accused can only be discharged. Against such a dismissal and discharge, the complainant has got a right of revision because the right of discharge is not amenable or subjected to the appellate jurisdiction of higher court.
Contention of the revisionists' counsel in fact is based only for the reason that Section 256 Cr.P.C. is mentioned in the order of the Magistrate but that, as stated above is of no consequence. Mere wrong quoting of Section will not make the order of Magistrate one passed under Section 256 Cr.P.C. which is a section contained in the procedure to be followed in a summons case. Warrant trial cases can not be tried as summons case as has been ordained under Section 259 Cr.P.C. but vice versa is permitted. Section 259 Cr.P.C. provides that during course of trial of summons case if it relates to offence punishable exceeding six months, if it appeared to the Magistrate that interest of justice demands, offence can be tried by observing procedure of warrant trial cases and Magistrate may proceed to hear the case in the manner provided under the Code for trial of warrant cases and may recall any witnesses who have already been examined.
In view of the above provision, submission of the revisionists' counsel cannot be accepted as impugned order by the Sessions Judge, Ghaziabad, is an infallible one. There is no merit in this revision which is dismissed.
After the aforesaid order was dictated, the revisionists' counsel made a prayer that some direction may be issued for bail prayer of the revisionists.
Looking to the facts and circumstances, I direct that if the revisionists surrender within a period of two weeks from today and move an application for bail, their prayer for bail is directed to be considered by the courts below on the same day in the aforementioned case for the aforementioned offences.
Order Date :- 6.7.2011 rkg