Legal Question in Criminal Law in India

two applications in two courts simultaneously for same remedy

A complaint under section 138 NI Act complainant attended on all hearing dates. On 19.5.2006 affidavit was given for cross examination on next date. The complainant noted the date 11.08.2006, but to his surprise , when he along with his lawyer as well as accused with his lawyer attended the court on 11.08.2006, the complaint was already dismissed on 24.7.2006 due to non appearance of complainant or his lawyer and on 24.7.2006 accused as well as his lawyer was also absent as per order sheet. There was overwriting in dates starting two figure 11 was converted into 24, but no overwriting in7.06 ie. 24.7.06. certify copy of the order was applied on 14.08.2006 and got it on 26.08.2006. The Honourable Supreme court under a similar matter under section 138 in Mohd. Azeeim vs A.venkatesh & anr., 2003 Cr.L.r(sc)211 writes that magistrate committed an error in not restoring the complaint. But at the same time there are a number of citations of Supreme court itself that under section 362 crpc, no court can review/alter its own decision. The question is, �can complainant submit an application for restoration of complaint to the said trial court and at the same time to be on safer side an application under section 378(4) crpc to High court?


Asked on 8/26/06, 7:18 pm

2 Answers from Attorneys
BANKIMCHANDRA SHAH ADVOCATE DIGVIJAYA CONSULTANCY SERVICES

Re: two applications in two courts simultaneously for same remedy

Yes you can file an application for restoration without any delay

or you can file a revision application also. no need to go to High Court.

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Answered on 8/26/06, 10:27 pm
Shrichand Nahar S.V.Nahar, Advocate

Re: two applications in two courts simultaneously for same remedy

An order dismissing a summons or summury case like 138 NI for non-appearance of the complainant U/s.256 Cr.P.C. amounts to acquittal of an accused and against the order of acquital of an accused, only High Court can be approached. In view of express bar contained U/s.362 Cr.P.C., it is doubtful whether the Magistrate would be empowered to restore the complaint. The best recourse would be to approach the High Court. You may also consider initiating action against the Magistrate, who grossly exceeded his powers u/s.256 for absence of complainant on a single date.

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Answered on 8/27/06, 2:27 am


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