Firoj Khan v. Bunty @ Rajesh Varndani

1 - Firoj Khan S/o Arsuddin Khan Aged About 26 Years R/o Mangal Bazar Chawni, Tehsil And District Durg (C.G.). ... Appellant. versus 1 - Bunty @ Rajesh Varndani S/o Chandraprakash Varndani Aged About 35 Years. 2 - Kailash Varandani S/o Chandraprakash Varndani Aged About 40 Years. 3 - Praveen Singh S/o R.S. Singh Aged About 40 Years R/o Block No. 2/c, Road No. 14, Sector-4 Bhilai, P.S. Bhilaibhatti, Tehsil And District Durg (C.G.). ... Respondent(s) For Appellant : Shri Shikhar Bakhtiyar appears on behalf of Shri BP Singh, Advocates. For Respondent(s) : Shri Vivek Shrivastava, Advocate. Hon'ble Shri Deepak Kumar Tiwari, J Judgment on Board 20/06/2025

#1. This Acquittal Appeal has been filed against the order dated

25.11.2024 passed by the Judicial Magistrate First Class, Durg (CG) in Criminal Case No.31616/2018 whereby, in the absence of complainant, though offence has been registered vide order dated 02.04.2018 under Sections 420, 467, 468, 471, 506 (Part 2)/34 of the IPC, however, the trial Court while wrongly invoking 2 the powers under Section 256 of Cr.P.C. { new Section 279 of Bharatiya Nagarik Suraksha Sanhita, 2023 (for short “BNSS, 2023”) } instead of Section 249 of the Cr.P.C. (new Section 272 of BNSS, 2023), dismissed the complaint and acquitted the accused/respondents.

#2. Learned counsel for the appellant/complainant would submit that the case has been fixed for appearance of one of the accused persons namely Pravin Singh against whom, an arrest warrant was issued. He would further submit that as nature of the case is of warrant trial so, the trial Court ought to have adopted proceedings for the cases instituted on a Police report, as the Chapter XIX of the Cr.P.C., 1973 attracts for Trial of Warrant- Cases by Magistrates, therefore, the learned Magistrate has wrongly exercised the powers under Section 256 of the CrPC. When an order is passed under that section, it amounts to acquittal, however, there is a difference between Section 249 and

#256. When an order is passed invoking powers under Section 249 Cr.P.C., the same is a discharge order, against which, a remedy of revision is available to the petitioner. He further submits that as the trial Court has wrongly passed an acquittal order by invoking the wrong provision, therefore, this acquittal appeal has been filed. Considering the backdrop, this Appeal may be allowed and the matter may be remitted back to restore the case and to the decide the same on merits.

#3. Shri Vivek Shrivastava, Advocate submits that he has filed 3 Vakalatnama on behalf of the respondents and would not dispute the aforesaid legal proposition.

#4. On perusal of the First Schedule of the Cr.P.C., it is explicit that the offence which has been registered is cognizable and non- bailable in nature, and the punishment for the offence exceeds 2 years. When the case is instituted otherwise than cases instituted on a police report, Chapter XIX comes into play which deals with Trial of Warrant-Cases by Magistrates, and in that event, Chapter XX of the Cr.P.C. attracts. In the warrant trial cases, there is no such provision as in the absence of complainant acquitting the accused as available for the summon cases under Section 256 of Cr.P.C and the only available section is 249 of Cr.P.C., so the learned Magistrate has wrongly invoked the powers under Section 256 Cr.P.C.

#5. In view of the above discussion, this Court is of the view that impugned order is not sustainable, and the same is accordingly set aside.

#6. Matter is remitted back to the learned Magistrate to restore the original complaint and to decide the same on merits.

#7. Both parties are directed to appear before the trial Court on

11.08.2025.

#8. Let a copy of this judgment along with record be sent to the concerned Court forthwith. Judge Avinash Sd/- (Deepak Kumar Tiwari)