Nafr High Court
Case Details
PRIYANKA VERMA Digitally signed by PRIYANKA VERMA Date: 2025.06.23 13:59:06 +0530 1 2025:CGHC:26398 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 807 of 2024 1 - Smt. Ragini Jaiswal W/o Shri Bhupendra Kumar Jaiswal, D/o Rambilas Jaiswal, Aged About 28 Years Caste-Kalar, R/o Namnakala, Near Maulbi Bandh, Ambikapur, District- Surguja (C.G.) versus ... Appellant 1 - Bhupendra Kumar Jaiswal S/o Late Parmatma Jaiswal, Aged About 32 Years Caste- Kalar, R/o Hardi Bazar, Chowki- Hardi Bazar, Tahsil - Pali, District- Korba (C.G.)
Legal Reasoning
4. It is well settled that discharge of an accused substantially affects the right of the complainant, so the order is not interlocutory in nature and the order of discharge can be challenged by way of Revision before the learned Sessions Court as the order has been passed by the Judicial Magistrate First Class, Ambikapur. In the matter of Haryana Land Reclamation and Development Corporation Ltd. vs. State of Haryana and another1, the following has been observed at para 4, 3 which reads as under:- “4. There are several decisions of this Court explaining the term “interlocutory order” occurring in Section 397(2) of the Code. In Amar Nath v. State of Haryana, (1977) 4 SCC 137 the said term is defined thus: (SCCp. 142, para 6) “The term "interlocutory order" is a term of well-know legal significance and does not present any serious difficulty. It has been used in various statutes including the Code of Civil Procedure, Letters Patent of the High Courts and other like statutes. In Webster's New World Dictionary "interlocutory" has been defined as an order other than final decision. Decided cases have laid down that interlocutory orders to be appealable must be those which decide the rights and liabilities of the parties concerning a particular aspect. It seems to us that the term "interlocutory order" in Section 397(2) of the 1973 Code has been used in a restricted sense and not in any broad or artistic sense. It merely denotes orders of a purely interim or temporary nature which do not decide or touch the important rights or the liabilities of the parties. Any order which substantially affects the right of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order, because that would be against 1 (1990) 3 SCC 588 4 the very object which formed the basis for insertion of this particular provision in Section 397 of the 1973 Code.” Untiwalia, J. speaking for the Bench in Madhu Limaye v. State of Maharashtra 1977(4) SCC 551, after referring to Amar Nath case and to some more decisions and after explaining what the term "interlocutory order" means finally observed as follows: (SCCp. 561, para 17) “If a complaint is dismissed under Section 203 or under Section 204(4), or the Court holds the proceeding to be void or discharges the accused, a revision to the High Court at the instance of the complainant or the prosecutor would be competent, otherwise it will make Section 398 of the new Code otiose.” When the question that has arisen in the present case is examined in the light of the above observations made in Amar Nath case and Madhu Limaye case, it is clear that the order of the High Court is not sustainable and as such is liable to be set aside as the order of discharge passed by the Chief Judicial Magistrate does not fall within the definition of the term "interlocutory order" and the inherent power of the High Court is not limited.” 5. The provision of Section 249 of the CrPC, has been invoked by the learned Judicial Magistrate First Class to discharge the accused. For the sake of brevity, the said provision reads as under:- 5 “249. Absence of complainant.- When the proceedings have been instituted upon complaint, and on any day fixed for the hearing of the case, the complainant is absent, and the offence may be lawfully compounded or is not a cognizable offence, the Magistrate may, in his discretion, notwithstanding anything hereinbefore contained, at any time before the charge has been framed, discharge the accused.”
Arguments
2 - Smt. Malti Jaiswal D/o Shri Amrit Jaiswal, Aged About 32 Years Permanent R/o Villge- Jhabar, Tahsil- Katghora, District- Korba (C.G.), At Present R/o Hardi Bazar, Chowki- Hardi Bazar, Tahsil- Pali, District- Korba (C.G.) ... Respondents For Appellant : Mr. Sharda Prasad, Advocate appears on behalf of Mr. Rahul Mishra, Advocate Hon'ble Shri Justice Deepak Kumar Tiwari Judgment On Board 20/06/2025 1. This Acquittal Appeal has been preferred against the order dated 11.12.2019 passed by the Judicial Magistrate First Class, Ambikapur in 2 Complaint Case No.2022/2014 whereby the respondents/accused have been discharged (respondent No.1, for the offence under Section 494 of the IPC & respondent No.2 for the offence under Section 494/109 of the IPC) by invoking the power under Section 249 of the CrPC. 2. Necessary facts of the case are that the appellant/complainant preferred a complaint case against the respondent/accused and vide order dated 07.06.2014, the case was registered against respondent No.1 for the offence under Section 494 of the IPC and against respondent No.2 for the offence under Section 494/109 of the IPC. As the case has been instituted otherwise than the police report, so the case was fixed under Section 244 of the CrPC for the charge before the evidence and when on the date of hearing i.e. on 11.12.2019, the complainant was not present, so the Magistrate by exercising the power under Section 249 of the CrPC, which states that in the absence of complainant, the offence is compoundable in nature and non-cognizable, discharged the accused by the impugned order. Hence this Appeal. 3. Heard the submission of learned counsel for the appellant and perused the documents annexed with the Appeal carefully.
Decision
6. In view of the above, since the accused was discharged under Section 249 of the CrPC (new Section 272 of the BNSS, 2023) by the learned Magistrate owing to the absence of the complainant, which is a final order, the correct remedy available to the appellant was to file a Revision Petition challenging such an order before the Sessions Court. 7. At this juncture, learned counsel for the appellant seeks to withdraw this Appeal to file a Revision before the Sessions Court in accordance with law. 8. Accordingly, this Appeal is disposed of reserving the aforesaid liberty. 9. Registry is directed to return the certified copy along with all the annexures after obtaining the photocopy of the same. 10.Consequently, all the pending application(s), if any, also stand disposed of. Priyanka Sd/- Judge (Deepak Kumar Tiwari)