Shivani Thakur
Published on: June 14, 2022 at 16:33 IST
The High Court of Jammu & Kashmir and Ladakh has ruled that once a complaint is dropped due to the complainant’s non-appearance, the required consequence is the accused’s acquittal, and that restoration of the proceedings is not authorised.
The single-judge Bench of Justice Sanjay Dhar observed that in such a situation, the only option with the complainant is to avail statutory remedy.
Due to the complainant’s/non-appearance, respondent’s the Trial Magistrate dismissed the complaint for non-prosecution. The complainant/respondent submitted an application for the complaint to be restored, which was granted.
It was argued that the learned Trial Magistrate lacked jurisdiction to restore the complaint after it was dismissed for non-prosecution, and that the proceedings against the petitioner based on the impugned complaint were therefore without jurisdiction.
The Court agreed, noting that if a Magistrate chooses to dismiss a case due to the complainant’s non-appearance.
“Once the learned trial Magistrate had recorded the order of dismissal of complaint because of non-appearance of the complainant, the necessary consequence thereof is acquittal of the accused.”
“Since the dismissal of complaint by the learned trial Magistrate for nonappearance of the complainant amounted to judgment of acquittal of the accused, therefore, it was not open to the learned learned trial Magistrate to review the said order in view of the statutory bar contained in Section 369 of the J&K Cr. P. C. Order dated 19.04.2017 is, therefore, without jurisdiction and is not sustainable in law.”
The Court mentioned Section 369 of the J&K Cr. P. C to state that once a judgement is signed by a Court, the same shall not be altered or reviewed except to correct a clerical error.
The Court to this regard suggested that the only course available to the respondent/ complainant in these circumstances was to file an appeal against the said order after seeking leave in terms of Section 417 of the J&K Cr. P. C.