2. This judgment shall also dispose of Criminal Appeals No. 47 and Cr. Misc (M) 322 of 1982 since in all these cases common question of law and fact is involved.
3. The appellant M/s. Guest Keen Williams Ltd. prosecuted the respondent under Sections 78 and 79. Trade & Merchandise Marks Act, 1958, in four different complaints. All these complaints were dismissed by the Chief Metropolitan Magistrate on 13th January 1982 under Section 249. Cr.P.C. in absence of the complainant.
4. The complainant filed four revision petitions for the revision of the aforesaid order. The offences under Sections 78 and 79. Trade & Merchandise Marks Act, are triable as summons cases. It seems an objection was taken that the impugned order should be deemed to have been passed under Section 256, Cr.P.C. and that under Section 249, Cr.P.C. and that under Section 256, Cr.P.C. the accused are to be deemed to have been acquitted and, thereforee, only an appeal lies against the order of acquittal and the revision petitions are not competent.
5. On 23rd February 1983 a learned single Judge of this Court passed an order that the revision petitions should be treated as petitions by way of appeals under sub-section (5) of Section 401. Cr.P.C. and consequently be placed before a Division Bench. The learned single Judge, however, gave liberty to the respondent to urge before the Division Bench that the revision petitions cannot be converted into appeals.
6. Pursuant to the above order the appeals have been listed before us.
7. Shri Dhanbir Singh, learned counsel for the respondent contended that it is prerequisite that before an appeal against an order of acquittal is entertained by the High Court the complainant has to file an application under sub-section (4) of Section 378, Cr.P.C. for grant of special leave to appeal from the order of acquittal and that only after the special leave to appeal is granted by the court that the complainant can present an appeal and that the complainant not having complied with the above conditions the appeals are not competent.
8. We do not agree in this contention. The impugned order was passed under Section 249. Cr.P.C. It is not disputed that no appeal lay against the said order. The complainant, obviously, under a genuine belief that no appeal lay against an order under Section 249. Cr.P.C. filed a revision petition. It is only during the hearing of the revision petition that it was discovered that the impugned order was wrongly passed under Section 249 Cr.P.C. and in fact it was an order under Section 256. Cr.P.C. and only an appeal lay against the said order since it amounted to an order of acquittal. The learned single Judge, accordingly, passed an order that the revision petitions be treated as petitions by way of appeals under sub-section (5) of Section 401, Cr.P.C.
9. Section 401 deals with the High Court's powers of revision. Sub-section (5) of Section 401 reads as under :-
'(5) Where under this Code an appeal lies but an application for revision has been made to the High Court by any person and the High Court is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do, the High Court may treat the application for revision as a petition of appeal and deal with the same accordingly.'
10. From a reading of the above provision it is clear that in a case where the High Court is satisfied that a revision petition was filed under an erroneous belief and in fact an appeal lay the court was empowered to treat the application for revision as a petition of appeal and deal with the same accordingly. The provisions of sub-section (5) are clearly applicable to the case in hand. They powers under S. 401(5) are independent of the provisions of S. 378 Cr.P.C.
11. Coming to merits the case was fixed for the evidence of the complainant for 13th January 1982. The complainant was not present when the case was called out for hearing and consequently the learned Chief Metropolitan Magistrate dismissed the complaint. The complaint was filed through Shri Y. R. Gupta an officer of the company. On 13th January 1982 a telegram was sent by the complainant expressing his inability to attend the court on account of illness and the said telegram was received round about 12-30 p.m.
12. Shri R. S. Butalia who was the advocate for the complainant before the Metropolitan Magistrate has filed an affidavit stating there in that on 13th January 1982 after attending to a case at Patiala House he had reached the court of Shri Chugh,. Chief Metropolitan Magistrate at 11-30 a.m. and he was told that the complaint had been dismissed because of default in appearance of the complainant.
13. The learned counsel for the appellant has pointed out to R. 3(ii)(a) of Chapter 1-F. Punjab High Court Rules and Orders. Volume III, and contended that the learned Magistrate had not afforded full opportunity to the complainant for appearance. Rule 3(ii)(a) reads as under :
'(a) Magistrate should not dismiss complaints or cases instituted on complaint without giving complainants full opportunity for appearance. Ordinarily, if a complainant is absent when his case is first called on, his case should be called on again later, and the time of dismissal should always be noted on the record.
14. On an examination of the record we find that in all probability the complaint was dismissed by the learned Chief Metropolitan Magistrate before 11-30 a.m.
15. After hearing the learned counsel for the parties we are of the view that the order dated 13th January 1982 dismissing the complaint is not legal. We accordingly set aside the impugned order and send the case back to the Chief Metropolitan Magistrate for proceeding further in accordance with law.
16. The parties are directed to appear before the Chief Metropolitan Magistrate on 1st November 1983 for further proceedings.
17. Appeal allowed.