9911796707
TMI Blog2020 (4) TMI 411X X X X Extracts X X X X X X X X Extracts X X X X ..... he accused because if the accused is acquitted, such acquittal can be questioned only by taking recourse to Section 378 (4) CrPC. - dismissal of a complaint under Section 203 CrPC is at a stage prior to issuance of process. In the instant cases, no cognizance of any offence was taken by the Court and even the cognizance of the complaint was not taken as the Court had rejected the applications for condonation of delay in not making the complaints within the prescribed period and therefore, there was no occasion to issue summons to the accused. It is manifest that criminal proceedings had not commenced based on the complaints. When criminal proceedings had not commenced, it will be incongruous to hold that the accused stands acquitted with the dismissal of the complaint - thus, in a circumstance where a complaint is dismissed as a consequence of the Court being not satisfied that the complainant had sufficient cause for not making the complaint within the prescribed period, the same does not result in acquittal of the accused. These leave petitions seeking leave to appeal are not maintainable. - Crl. L.P No.04 of 2019 WITH Crl. L.P No.05 of 2019 - - - Dated:- 4-3-2020 - HO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 have been filed along with Memos of Appeal. 7. It is to be noted, at this juncture, that appeals have not been registered till now as the instant Crl. L.P No.04/2019 and Crl. L.P No.05/2019 are pending adjudication. 8. In both the Criminal Leave Petitions, the respondents have filed objections, contending, amongst others, that in absence of an order of acquittal passed by the learned Magistrate, no right of appeal is conferred by statute upon the appellant/complainant and therefore, the applications seeking leave to appeal are not maintainable. 9. I have heard Mr. Jorgay Namka, learned counsel for the appellant and Mr. Anmol Prasad, learned senior counsel appearing for the respondent. 10. Mr. Namka submits that since the learned Magistrate had dismissed the complaints, the same amounts to acquittal of the respondent and therefore, appeal under Section 378 (4) CrPC would be maintainable. In support of his submissions, learned Counsel has placed reliance on the following decisions: i. Vinod Kumar vs. State of Punjab, reported in 1999 SCC Online P H 687. ii. Kalpana Tyagi vs. Sneh Lata Sharma, reported in 2003 CRI.L.J. 3395. iii. S. Rajaram vs. S. Seenivas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court. 16. Section 378 (5) CrPC provides that no application under sub- section (4) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of six months, where the complainant is a public servant, and sixty days in every other case, computed from the date of the order of acquittal. Section 378 (6) CrPC provides that no appeal from that order of acquittal shall lie under sub-section 1 or sub-section 2 of Section 378 if, in any case, the application under sub-section (4) for the grant of special leave to appeal from an order of acquittal is refused. 17. The question that arises for consideration is as to whether on the dismissal of a complaint consequent upon rejection of an application for condonation of delay, the same amounts to acquittal of the accused. If the answer is in the affirmative, necessarily, an application for grant of leave to prefer appeal would be maintainable. 18. Bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were held to be not maintainable. The Delhi High Court had held that there is a distinction between complaints dismissed prior to the summoning of an accused and those dismissed subsequent to summoning of the accused. It was held that if a complaint is dismissed prior to summoning of the accused, the order may be challenged by way of a revision petition. 24. Skyline and Housing Pvt. Ltd (supra), which is a judgment of Karnataka High Court at Bengaluru, was rendered in an appeal filed challenging an order whereby the application for condonation of delay was rejected and consequently, the complaint was dismissed . The appeal came to be allowed by condoning delay of five days and restoring the complaint petition. 25. The facts before Karnataka High Court and the Madras High Court are similar to the facts of these two Criminal Leave Petitions. Perusal of the judgment of the Karnataka High Court, however, goes to show that the question with regard to maintainability of the appeal was not raised before the Court. Similarly, no issue was raised before Madras High Court that Criminal Revision Petition was not maintainable and that in such circumstances, only an appeal will be maintai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aint under Section 203 CrPC is no bar for the entertainment of a second complaint on the same facts but it can be entertained only in exceptional circumstances such as where the previous order was passed on incomplete record, or on a misunderstanding of the nature of the complaint or where new facts which could not, with reasonable diligence, have been brought on record in the previous proceeding. The fact that a second complaint can be entertained on same facts, albeit in exceptional circumstances, after dismissal of a complaint under Section 203 CrPC, demonstrates that dismissal of a complaint at every stage does not automatically result in acquittal of the accused because if the accused is acquitted, such acquittal can be questioned only by taking recourse to Section 378 (4) CrPC. As noticed earlier, dismissal of a complaint under Section 203 CrPC is at a stage prior to issuance of process. 30. Section 142 (1) of N.I Act provides that cognizance of any offence punishable under Section 138 shall not be taken by any Court unless conditions set out in Section 142 (1) (a) and (b) are satisfied. The word cognizance is neither defined in the N.I Act nor in CrPC. In Chief Enforc ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
