Judgment · High Court · 2008

learned counsel for respondent No.2.

#3. The petitioner herein has filed the complaint under Section 200 Cr.P.C. against respondent Nos.1 and 2 for the offences under Sections 343, 348, 365, 506 read with 34 and 120- B IPC before the XIV Metropolitan Magistrate, Hyderabad, and the said Magistrate after recording the sworn statement of the complainant taken cognizance of the offence under Section 343 read with 34 and 120-B IPC against respondent Nos.1 and 2 and issued summons to respondent Nos.1 and 2. The impugned order has passed by the learned Magistrate in Crl.M.P.No.4682 of 2007 dismissing the complaint under Section 256 Cr.P.C, and aggrieved by the said Order, the petitioner herein filed Crl.R.P.No.35 of 2008 before the learned Metropolitan Sessions Judge, Hyderabad and the Metropolitan Sessions Judge, Hyderabad has confirmed the Order passed by the learned Magistrate.

#4. The contention of the learned counsel for the petitioner is that the learned Magistrate has followed the procedure of warrant case even though the cognizance taken under Section 343 IPC which is a summons procedure case and dismissed the complaint under Section 256 Cr.P.C.

#5. As per the record, the learned Magistrate has passed the Order on 19.06.2007 allowing the petition under Section 256 Cr.P.C. filed by the complainant and directed him to produce the evidence Under Section 244 Cr.P.C. following the warrant procedure and thereafter the matter was adjourned to 10.07.2007. Subsequently, on 10.01.2008 complainant again filed a petition under Section 256 Cr.P.C. for condoning his absence and the learned Magistrate has dismissed the said petition as petitioner was continuously absent since 10.07.2007 without producing any evidence and consequently the complaint was dismissed under Section 256 Cr.P.C. Therefore, from the above, it is evident even though the offence for which the cognizance was taken is only summons case, but the learned Magistrate has followed the procedure of warrant case under Section 244 Cr.P.C. by Order dated 19.06.20007. Subsequently, he cannot again take the case as summons case and dismissed the complaint under Section 256 Cr.P.C. Therefore, the said Order passed by the learned Magistrate and consequently the Order passed by the Metropolitan Sessions Judge, Hyderabad are liable to be quashed.

#6. In the result, the criminal petition is allowed and the Order passed by the Metropolitan Sessions Judge, Hyderabad in Crl.R.P.No.35 of 2008 dated 16.05.2008 and consequently the Order of the Chief Metropolitan Magistrate, Hyderabad Crl.M.P.No.4682 of 2007 dated 10.01.2008, are hereby quashed. _____________________ P.DURGA PRSAD, J 1st April, 2011 KSP