1978 (9) TMI 199 - HC - Indian Laws

Summary

Issues:
- Dismissal of complaint for want of prosecution by trial Magistrate
- Maintainability of appeal filed by private complainant after the expiry of the prescribed period
- Change of procedure from a warrant case to a summons case
- Applicability of section 5 of the Limitation Act to appeals under section 378(4) of the Criminal Procedure Code

Issue 1: Dismissal of complaint for want of prosecution
The appeal was filed against the trial Magistrate's order dismissing the complaint due to the absence of the complainant and his counsel. The appellant argued that once the case was treated as a warrant case and charges were framed, it was improper to dismiss the case for lack of appearance by the complainant. The court found the trial Magistrate's order to be illegal as the provisions of section 249 of the Criminal Procedure Code, which apply to cases where charges have not been framed, were not relevant in this situation.

Issue 2: Maintainability of appeal filed after the prescribed period
The respondents contended that the appeal filed by the complainant after the expiry of the 60-day period stipulated under section 378(5) of the Criminal Procedure Code was not maintainable. Citing the Supreme Court decision in Kaushalya Rani v. Gopal Singh, they argued that section 5 of the Limitation Act did not apply to such appeals. However, the appellant argued that post the enactment of the Limitation Act, 1963, section 5 was applicable to cases governed by special or local laws, including appeals under section 378(4). The court held that section 5 of the Limitation Act applied to the present appeal, and the delay had been condoned.

Issue 3: Change of procedure from a warrant case to a summons case
The respondents argued that even though the case initially started as a warrant case, the charges framed were for offenses triable as a summons case, making the dismissal order akin to one under section 256 of the Criminal Procedure Code. They relied on precedents to support their contention. However, the appellant pointed out that changing the procedure from a warrant case to a summons case after the trial had commenced was not permissible. Citing relevant case law, the court agreed with the appellant's argument and held that the trial Magistrate's order was incorrect.

Issue 4: Applicability of section 5 of the Limitation Act
The respondents contended that section 5 of the Limitation Act did not apply to appeals under section 378(4) of the Criminal Procedure Code. However, the appellant argued that post the enactment of the Limitation Act, 1963, section 5 was applicable to such cases. The court agreed with the appellant, citing relevant case law, and held that section 5 of the Limitation Act governed the present appeal, and the delay had been condoned.

In conclusion, the court allowed the appeal, set aside the trial Magistrate's order, and directed the case to be heard from the stage at which it was dismissed, emphasizing the importance of following the correct legal procedures in criminal cases.