Madhuri Tirkey v. The State of Jharkhand & Ors.

CORAM: HON’BLE MR. JUSTICE NAVNEET KUMAR For the Petitioner For the State For the O.P. No.2 Mr. Samir Kumar Lall, Advocate : : Mr. Vishwanath Ray, Advocate : Mr. Ranjan Kumar Singh, Advocate ----- Through: Video Conferencing 11/30.03.2022 Heard learned counsel for the petitioner and learned counsel for the opposite parties. 2. Learned counsel appearing on behalf of the petitioner had submitted that this Cr.M.P. has been filed for setting aside the order dated 19.08.2011 passed by the learned Session Judge, Jamshedpur passed in Cr. Revision No.168 of 2009, whereby and where under the learned court below has been pleased to dismiss the criminal revision No.168 of 2009, filed by the petitioner against the order dated 7.03.2009 passed by the learned Judicial Magistrate, 1st Class, Jamshedpur, passed in complaint case No.1975 of 2008, under which, the learned court of Judicial Magistrate did not find the merit in the complaint case No. 1975 of 2008 (Madhuri Tirky Vs. Chandramoleshwar Kumar and Ors.) for the proposed offence alleged therein and the said complaint case was dismissed being devoid of merit. 3. It has further been submitted by the learned counsel appearing on behalf of the petitioner that the criminal revision No.168 of 2009 was preferred by this petitioner against the order dated 07.03.2009 passed by the learned Judicial Magistrate which was dismissed for non-prosecution, which is against the provisions of law. The learned counsel appearing on behalf of the petitioners has placed reliance on observations made by the Hon’ble Supreme Court as reported in (2007)3 SCC (Cri) 437 in the case of Madan Lal Kapoor Vs. Rajiv Thapar & Ors., wherein under the circumstances of the case, the 2 supreme Court observed that the criminal appeal cannot be dismissed for default and the same principal will apply to the criminal revision also. 4. On the other hand, learned counsel appearing on behalf of the opposite party No.2, 3 and 4 opposed the contentions raised on behalf of the petitioner submitting that the learned court below has rightly dismissed the criminal revision because there is no merit in the complaint case and very reasoned order was passed by the learned court of judicial magistrate where no prima facie case was found and therefore the complaint was dismissed. 5. Having taken into consideration the aforesaid submissions advanced on behalf of both the parties, it is found that the moot question to be decided in this Cr.M.P in hand is as to whether the criminal revision can be dismissed for default or not without going into the merit of the case. 6. In order to appreciate the impugned order dated 19.08.2011, it is relevant to reproduce the same, which reads and under: “No step has been taken by the applicant. O.P. is present. Record shows that this case was filed on 4/6/2009. By order dated 2/6/2011 and 27/7/2011, petitioner was directed to be ready for hearing. But today also no step has been taken by the petitioner which shows petitioner has lost his interest in the case. Hence this case is dismissed for default.” From perusal of the said order, it is manifest that the said criminal revision is dismissed for default by the learned court below without going into the merit of the case and without hearing the petitioner. 7. In the light of the observation of the Hon’ble Supreme Court as enunciated in the aforesaid case as reported in Madan Lal Kapoor Vs. Rajiv Thapar and others in (2007) 3 SCC (Cri) 437, it is found that the impugned order is bad in law and the criminal revision should not be dismissed for default under the circumstances as the Hon’ble Supreme Court has observed, which is as under: 3 “--------------------------------------

4. The matter relates to administration of criminal justice. As held by this Court, a criminal matter cannot be dismissed for default and it must be decided on merits. Only on that ground the appeal deserves to be allowed. 5. Thus in Bani Singh v. State of U.P. [(1996) 4 SCC 720 : 1996 SCC (Cri) 848] , a three-Judge Bench of this Court held that a criminal appeal should not be dismissed in default but should be decided on merits. If despite notice neither the appellant nor his counsel is present, the court should decide the appeal on merits. If the appellant is in jail the court can appoint a lawyer at State expense to assist it. This would equally apply to the respondent. 6. In Bani Singh v. State of U.P. [(1996) 4 SCC 720 : 1996 SCC (Cri) 848] the Supreme Court overruled its earlier decision in Ram Naresh Yadav v. State of Bihar [AIR 1987 SC 1500 : 1987 Cri LJ 1856] in which it was held that a criminal appeal can be dismissed for default. 7. In Parasuram Patel v. State of Orissa [(1994) 4 SCC 664: 1994 SCC (Cri) 1320] the Supreme Court held that a criminal appeal cannot be dismissed for default. 8. In our opinion the same reasoning applies to criminal revisions also, and hence a criminal revision cannot also be dismissed in default.”

8. In view of the aforesaid categorical and explicit observations of the Hon’ble Supreme Court, this Cr.M.P. is allowed inasmuch as the learned trial court has passed the impugned order dated 19.8.2011 without going into the merit of the case and without giving reasons. In the backdrop, the impugned order dated 19.08.2011 passed by the learned Session Judge, Jamshedpur in Cr. Revision No.168 of 2009 is set-aside. 9. It goes without saying that this Court has no occasion to appreciate the merit of the case and the impugned order is set-aside only on the technical ground as above and the learned court below is directed to dispose of the same on merit without being prejudiced to the order of this Court. Since the matter is very old, the learned court concerned is directed to decide it as early as possible preferably within a period of two months from the date of the receipt of this order. R.Kumar (Navneet Kumar, J.)