Harishchandra @ Sunil Rajaram Rasker v. Kantilal Virchand Vora & Another 1998 CriLJ 3754

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FACTS OF THE CASE 

A Criminal case upon complaint was instituted in the court of a Magistrate by the complainant (respondent No. 1) against the petitioner under section 138 of the Negotiable Instruments Act on 6-11-1990. On 15-6-1993 on account of absence of the complainant the learned Magistrate dismissed the complaint but after some time, the same day, when the complainant appeared, he recalled his order.

ISSUES RAISED

1. Whether a Magistrate can under section restore a complaint?

CONTENTIONS OF THE PETITIONERS

The learned counsel appearing on behalf of the appellant submitted that the under Article 227 of the Constitution of India and section 482 of the Criminal Procedure Code is that once in a complaint case, the Magistrate dismisses the complaint for default, he cannot restore the same and the only remedy open to the complainant is to file a second complaint.

CONTENTIONS OF THE RESPONDENTS

The learned counsel appearing on behalf of the respondent supported the impugned judgment by the magistrate and admittedly pending before the court. 

RATIO DECIDENDI 

The Hon’ble Bombay High Court held when a Magistrate is not empowered to recall his order and thus allowed the petition and quashed the order dated 15-16-1993 passed by the magistrate of restoring the complaint. 

JUDGMENT

The Bombay High Court interpreted and stated that the Magistrate is not empowered to recall his order and thus allowed the petition and quashed the order dated 15-16-1993 passed by the magistrate of restoring the complaint. When he records a complaint he cannot discharge it because of absence of the complainant as a ground. Consequently, the Bombay High Court allowed the petition and quashed the order of the Magistrate and restored the complaint.  

CONCLUSION

In India the most prevailing matters include the matters of cheque bounce or Section 138 of Negotiable Instrument Act, 1881 that provides for a strict liability on a person that draws cheque for an amount and provides for a greater vigilance over such financial activities. The magistrates are expected to work in an ethical legal ambit keeping justice first then the concept of constitutionalism. The complaint is an essential element of Indian Criminal Jurisprudence and is essential to understand the principle of fair trial to the complainant and the accused.  

The discharge of a complainant is a needy process but it blindly cannot suppress or infringe the rights of any accused and complainant. In the case where the complaint was disposed off on the grounds that the complainant was absent was held to be invalid by the Hon’ble High Court of Bombay.  The court realized the essentiality of the principle in the criminal jurisprudence and quashed the order of the magistrate.

written by

Devranjan Singh Shekhawat, B.B.A LL.B (H) ,VI^th Semester ,III^rd Year, Seedling School of Law and Governance, Jaipur National University  

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