9911796707
TMI Blog1985 (8) TMI 10X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the case was adjourned from time to time. On February 2, 1984, neither the complainant nor his pleader was present and the trial court passed the following order: " Complainant is absent though repeatedly called out till 1.45 p.m. The counsel is also absent though repeatedly called out till 1.45 p.m. Accused No. 2 with his counsel. Accused No. 3 had filed an application for exemption and it is allowed as no say is given. Case is dismissed. " After the dismissal of the complaint case, the non-applicant No. 1 filed an application for restoration of the complaint which was registered as Miscellaneous Criminal Case No. 32 of 1984. The said application was filed on February 27, 1984, i.e., 25 days after the complaint case was dismissed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the applicant/accused, the trial judge had passed an order under section 256 of the Criminal Procedure Code which has resulted in the acquittal of the accused and the said order, being a final order, could not be reviewed by him. Shri M. G. Bhangde, for the complainant-Income-tax Officer, urged that as per the cited rulings, an order dismissing the complaint in default is not a substantive order in concluding the innocence or guilt of the accused and thus the power under section 362 would not become operative. It was, however, fairly conceded by Shri Bhangde for the complainant that the present complaint case under section 277 of the Income-tax Act, 1961, was triable as a summons case, inasmuch as the imprisonment provided for the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case. " The procedure differs for a summons case and a warrant case, inasmuch as a summons case deals with minor offences, where punishment does not go beyond two years of imprisonment whereas a warrant case relates to more serious offences where punishment goes beyond the period of two years. In a summons case, if the complainant is absent, the provision gives a mandate to the Magistrate to acquit the accused unless, for some reason he thinks it proper to adjourn the hearing of the case to another date. This mandate is c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shows as follows: " I have perused the original record of the Criminal Case No. 839 of 1982. I have perused the order passed by my learned predecessor on 2-3-1984. The said order is admittedly under section 249 of the Criminal Procedure Code. I think that relying upon the above observations of the Lordship of our High Court, the said order can be reviewed on sufficient reasons shown by the complainant ........" It is in the light of these presumptions that it was a warrant trial that he applied the ratio of the judgment in Criminal Revision Application No. 43 of 1980 by our High Court as well as of In re Wasudeo Narayan, AIR 1950 Bom 10. The said presumption is erroneous, as admittedly the offence under section 277 was punishable ..... X X X X Extracts X X X X X X X X Extracts X X X X
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