Acquittal Is Necessary Consequence Of Dismissal Of Complaint For Default, Restoration Proceedings Barred: J&K&L High Court
The Jammu and Kashmir & Ladakh High Court recently held that the consequence of a criminal complaint being dismissed in default is acquittal of accused and the complainant has no other option but to avail statutory remedy against the same; he cannot seek restoration of the proceedings.Holding thus, it quashed the order passed by a Munsiff Court, whereby the complaint under Section 138...
The Jammu and Kashmir & Ladakh High Court recently held that the consequence of a criminal complaint being dismissed in default is acquittal of accused and the complainant has no other option but to avail statutory remedy against the same; he cannot seek restoration of the proceedings.
Holding thus, it quashed the order passed by a Munsiff Court, whereby the complaint under Section 138 of Negotiable Instruments Act was restored to its original number, on a restoration application filed by the complainant (respondent before the High Court).
The Trial court, on account of the non-appearance of the complainant, had dismissed the complaint for non-prosecution.
The Single Judge Bench of the High Court, headed by Justice Sanjay Dhar, also quashed the proceedings that were carried out after the restoration of the complaint.
Aggrieved by the order of restoration of the complaint, the petitioner (accused in the Trial court) filed a petition in the High Court challenging not only the restoration order but the complaint also.
Counsel for the petitioner, Adv Gulzar Ahmad Sopori, argued that the complaint was filed beyond the prescribed period of limitation and that the trial Magistrate, has without recording any reasons for condoning the delay in filing the complaint, issued process against the petitioner. Jurisdiction of the trial court to restore the complaint and proceedings thereon was also called in question.
Justice Sanjay Dhar took note of order of dismissal wherein the Trial Court had dismissed the complaint for non-prosecution without recording acquittal of the accused.
The High Court took recourse to Section 247 of J&K Code of Criminal Procedure that deals with the consequences of non-appearance of the complainant.
From the perusal of Section 247, High court said, "...it is clear that if a Magistrate chooses to dismiss a complaint because of non-appearance of the complainant, he has to acquit the accused meaning thereby that acquittal of the accused is a necessary consequence of the dismissal of complaint in default of appearance of the complainant."
The court held once trial Court had recorded the order of dismissal of complaint because of non-appearance of the complainant, acquittal of the accused was necessary consequence thereof.
The court then delved into section 369 of the J&K CrPC that provides once a judgment is signed by a Court, the same shall not be altered or reviewed except to correct a clerical error.
"Since the dismissal of complaint by the learned trial Magistrate for non-appearance of the complainant amounted to judgment of acquittal of the accused, therefore, it was not open to the learned learned trial Magistrate to review the said order in view of the statutory bar contained in Section 369 of the J&K Cr. P. C. Order dated 19.04.2017 [the restoration order] is , therefore, without jurisdiction and is not sustainable in law," the court held.
The court said that the only course available to the respondent/complainant in these circumstances was to file an appeal against the said order after seeking leave in terms of Section 417 of the J&K Cr. P. C.
Filing of an application for restoration of the complaint, which, in effect, amount to seeking review of the order of dismissal of the complaint, was not the proper course for the respondent/complainant to adopt.
The court, however, did not deal with the argument regarding delay in filing of the complaint, as was advanced by the counsel for the petitioner. The court left it open for the respondent/complainant to avail appropriate remedy against the order of dismissal of the complaint in accordance with law.
Case Title : GHULAM RASOOL MUGHAL v GH. AHMAD HAJAM
Citation : 2022 LiveLaw (JKL) 43