9911796707
TMI Blog2021 (11) TMI 446X X X X Extracts X X X X X X X X Extracts X X X X ..... only remedy available to him was to file an appeal against the said order after seeking leave in terms of Section 417 of J K Cr.P.C. A revision petition against an order of acquittal, which is appealable, is not maintainable in view of sub-section (5) of Section 439 of J K Cr.P.C. The order of dismissal of complaint passed by learned Magistrate amounted to acquittal of petitioner herein and the said order could have been challenged only by way of an appeal and not by way of a revision petition. Therefore, the Revisional Court has exercised a jurisdiction which is not vested in it and, in fact, is barred in terms of sub-section (5) of Section 439 of J K Cr.P.C. The impugned order passed by the Revisional Court is set aside - Petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a further direction to the said Magistrate to revive the complaint in question to its original number and to proceed with the same in accordance with law. 4. The only contention that has been raised by the learned counsel for the petitioner is that once an order of dismissal of complaint is made by the Magistrate, the same amounts to acquittal. According to the learned senior counsel for the petitioner, an order of acquittal can be challenged only by way of an appeal after seeking leave to file the same and not by way of a revision petition. 5. The above contention of the petitioner has been disputed by learned counsel for the respondent. 6. I have heard learned counsel for the parties and perused the material on record. 7. As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng of the case to some other day: Provided that where the complainant is represented by a pleader 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 (2) The provisions of sub-section (1), shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death. 9. From a bare perusal of the aforesaid provision, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall be entertained at the instance of the party who could have appealed. 13. The aforesaid view is supported by the judgment of the Bombay High Court in the case of Om Gayatri Co. Ors. V. State of Maharashtra anr. 2006 Cri. L.J. 601. In the said case, the High Court of Bombay, after noticing the law on the subject, has in para 13 observed as under: 13. It can be seen that earlier decisions; of this Court and other High Courts have consistently laid down law that only an appeal lies against order of dismissal of the complaint which amounts to acquittal of the accused and, in case of acquittal remedy of revision is not available to the aggrieved party. Not only that under Section 401 of Cr.P.C. there is express bar for ente ..... X X X X Extracts X X X X X X X X Extracts X X X X
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