M/S 3rd DIMENSION ARCHITECTURE PVT. LTD. v. THE STATE & ANR

Delhi High Court · 13 Mar 2013 · 2013:DHC:1369

G. P. Mittal

CRL.M.C. 198/2012

2013:DHC:1369

criminal appeal_allowed Significant

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The Delhi High Court held that dismissal of complaint in default under Section 256 CrPC results in statutory acquittal and only an appeal under Section 378(4) CrPC lies against such acquittal, setting aside the Sessions Judge's order entertaining an appeal against acquittal.

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Crl.M.C..198/2012 HIGH COURT OF DELHI
Date of Decision: 13th March, 2013

CRL.M.C. 198/2012
M/S 3rd DIMENSION ARCHITECTURE PVT. LTD. ..... Petitioner
Through: Mr. Rajesh Manchanda with Mr. Rajat Manchanda, Advocates

VERSUS

THE STATE & ANR ..... Respondent
Through: Ms. Rajdipa Behura, APP for the State

CORAM:

HON'BLE MR. JUSTICE G.P.MITTAL

JUDGMENT

G. P. MITTAL, J.

(ORAL)

1. The Petitioner invokes the inherent powers of this Court for setting aside a judgment dated 13.02.2007 passed by the learned Additional Sessions Judge(“ASJ”) whereby the order dated 08.11.2006, dismissing the complaint in default which had the effect of acquitting the Petitioner, was set aside.

2. The only ground of challenge raised by the learned counsel for the Petitioner is that as per Section 256 of the Code of Criminal Procedure (Code) the order of dismissal in default was to have an effect of acquittal of the accused. It is urged that the learned ASJ was not entitled to entertain Appeal against acquittal by a Private Complainant. The only course available to the Respondent was to approach this Court by way of an Appeal under Section 378(4) of the Code for setting aside of the said order. 2013:DHC:1369 Crl.M.C..198/2012

3. I am in perfect agreement with the contention raised. The case is squarely covered by a judgment of a Co-ordinate Bench of this Court in Ravi Sharma v. State(NCT of Delhi) & Anr., 2009(113) DRJ 494 where in para 13 it was held as under:

“13. So far as the reliance by the Court of Sessions on the note on cases is concerned, this cannot be treated as a precedent as the facts of the said case are not given in the note on cases and they are not treated as a judicial precedents. As against this, there are three authorities of the learned Single Judge giving the detailed facts holding that a case where the complainant is absent and the complaint is dismissed under Section 256 Cr.P.C., it results in statutory acquittal of the accused. If there is an acquittal of an accused the only remedy which is available to the respondent/complainant is to file an appeal against the acquittal as envisaged under Section 378(4) of Cr.P.C. Moreover, in the present case, the learned counsel for the petitioner has urged that even the notices were not served on him by the learned Sessions Judge therefore, that also tentamounted to passing of an order in violation of principles of natural justice.”

4. Thus, the learned ASJ acted illegally in setting aside the order dated 08.11.2006 as the Appeal against acquittal in case of a complaint instituted otherwise than on a police report, the only remedy was to approach this Court under Section 378 of the Code.

5. Petition accordingly succeeds. The order dated 13.02.2007 is hereby set aside.

6. Pending Applications stand disposed of.

JUDGE MARCH 13, 2013 pst

M/S 3rd DIMENSION ARCHITECTURE PVT. LTD. v. THE STATE & ANR

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JUDGMENT

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