Ashok Kumar Singh vs The State of Bihar and Another

Abhijit Sinha, J.—The petitioner who happens to be the complainant of Complaint Case No. 53 of 2007 is aggrieved by the order dated

12.3.2007 passed by the learned Sessions Judge, Gaya in Criminal Revision No. 34 of 2007 whereby he was pleased to dismiss the revision

preferred by the petitioner against the order dated 9.2.2007 passed by the learned Chief Judicial Magistrate, Gaya in Complaint Case No. 53 of

2007 whereby he has dismissed the complaint for non prosecution.

Although the sole accused impleaded as O.P. No. 2 herein was duly noticed, he chose not to appear to contest this application.

It appears that the petitioner herein filed the aforesaid complaint case on 12.1.2007 alleging commission of offence under Sections 406, 420

I.P.C. and 138 of the Negotiable Instruments Act and the first date fixed in the said case was 13.1.2007 on which date the complainant could not

attend court due to the illness of his father and 24.1.2007 was fixed as the next date. On 24.1.2007 the complainant filed his attendance through

the Advocate but due to some misunderstanding he could not appear in court as a result of which the case was fixed for 2.2.2007. On that date

the complainant filed his attendance and the next date fixed was 9.2.2007. However, in the mean time on 5.2.2007 his father expired but

nevertheless the complainant came to court and told his counsel that in view of the death of his father he was in a state of shock and it was not

possible for him to appear in court for his statement on S.A. but as it appears though attendance was filed in court no one responded when the

case was called out and as such the complaint petition was dismissed by the learned Chief Judicial Magistrate, Gaya.

A revision was preferred there against but the same was dismissed at the admission stage itself by the learned Sessions Judge who found no

irregularity or illegality in the impugned order.

It has been submitted on behalf of the petitioner that he has a very good case since the cheque issued by the accused had bounced and a

sympathetic view may be taken as the shock suffered by him by the death of his father was a tentative cause for his non appearance in court.

Admittedly, attendance had been filed on behalf of the complainant but there was no response either by him or by his accredited counsel when

the case was called out repeatedly. As per the complainant he had informed his counsel on that very date that he was in a state of shock due to the

death of his father and in that situation it was not possible for him to attend court. The learned Counsel apparently failed in his duties. He could

have informed the court about the circumstances for the non appearance of the complainant and at least could have prayed for an adjournment

which he failed to do. Apparently, the lawyer was at fault and as per the settled law the client cannot be made to suffer for default/non action on

the part of his lawyer.

There is another aspect of the matter. The complaint case was filed on 12.1.2007 and was dismissed within a month on 9.2.2007 in a hurry.

One fails to understand why the court was in such a hurry to dismiss the complaint petition when not even a month had passed and that too when a

large number of complaint cases are pending in the court. Obviously, this dismissal was not on merits u/s 203 Cr.P.C.

In the circumstances, referred to above, this Court in exercise of powers u/s 482 Cr.P.C. to act ex debito justitiae to do that real and substantial

justice for the administration of which alone it exists, or to prevent the abuse of the process of the court hereby sets aside the impugned order of

the Revisional Court as also the learned Chief Judicial Magistrate and directs that an opportunity be given to the complainant after noticing him to

appear in court for the recording of his statement on S.A. This to my mind will serve the ends of justice.

Accordingly, this application is allowed and the learned Chief judicial Magistrate, Gaya, will act in accordance with law in the light of the

observations made above.