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At present to get criminal complaint restored, one has to move High Court

Give power to Magistrate to restore complaint if sufficient cause is shown for absence

New Delhi: The Law Commission of India has recommended amendments to the Criminal Procedure Code to provide for restoration of a criminal complaint dismissed in default by a court resulting in discharge or acquittal of the accused depending on the case being a warrant case or a summons case.

The Commission, headed by Justice A.R. Lakshmanan, said in its 233rd report:

“It is a well settled law that a criminal court has no power like the one which a civil court possesses under Order IX of the Code of Civil Procedure to restore a complaint dismissed in default.

“In order to get the [criminal] complaint restored, a complainant, poor or rich, has to knock the door of the High Court under Section 482 Cr.PC. If a Magistrate has the power to entertain a complaint and decide it on merits after summoning the accused, he should also have the power to restore it on good or sufficient cause being shown and re-summon the accused to face the trial on merits.”

The report said Sections 249 and 256 Cr.PC pertained to warrants and summons cases and the absence of complainant to prosecute the complaint on the day of appearance would result in dismissal of the complaint. However, non-compoundable and cognisable offences were excluded from the purview of such dismissal.

The Commission was of the view that with regard to offences “that are compoundable and non-cognisable where discretion is given to the Magistrate to discharge the accused for the absence of complainant, the Magistrate may be vested with the power to restore the complaint on the file if sufficient cause is shown by the complainant for his absence on the date of hearing.”

When provisions had been provided in the Cr.PC to restore a suit which had been dismissed on the ground of absence of plaintiff, similar provisions should be provided in the Code also for restoration of criminal complaints dismissed in default.

By adding provisions in the Cr.PC for restoration of complaints, the burden on High Courts could be lessened.

The report said, “A meritorious complaint cannot be allowed to be thwarted only on the ground that the complainant was unable to remain present, though there existed good and sufficient cause for such absence.” The Commission, accordingly, recommended appropriate amendments to Sections 249 and 256 of the Cr.PC enabling restoration of criminal complaints.

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