Section 528 BNSS Petition Maintainable Against Pre-Cognizance Dismissal of Complaint, Holds J&K and Ladakh High Court
The High Court drew a clear line between dismissal at pre-cognizance stage and acquittal under Section 279 BNSS, holding only the former is revisable under Section 528 BNSS and restoring the complaint to the trial Magistrate.
Justice Sanjay Dhar, sitting singly at the Srinagar Bench, resolved a threshold question that arises with regularity before trial courts under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS): can a complainant challenge the dismissal of his complaint by invoking Section 528 of the BNSS? The answer, the Court held, depends entirely on the stage at which the complaint was dismissed. Where dismissal occurs at the pre-cognizance stage — before process has been issued against the accused — the complainant can seek relief under Section 528 or by way of a revision petition. Where the dismissal follows the issuance of process and amounts to an acquittal under Section 279 BNSS, the remedy is an appeal, not a revision.
The Dispute Before the Court
Petitioner Abdul Razzak Beigh had filed a complaint before a trial Magistrate against Altaf Ahmad Khan. The complaint was dismissed for non-prosecution on a day when neither the petitioner nor his counsel appeared. Beigh moved the High Court under Section 528 of the BNSS seeking to set aside the dismissal order and restore the complaint.
The respondent, Altaf Ahmad Khan, did not appear before the High Court despite service, leaving the assertions in the petition unrebutted.
The Legal Question: Section 279 or Pre-Cognizance Dismissal?
Section 279 of the BNSS, which falls within Chapter XXI, deals with the consequences of non-appearance or death of a complainant. Under that provision, if summons has been issued on a complaint and the complainant does not appear on the day appointed for the appearance of the accused or on any subsequent adjourned date, the Magistrate must first give thirty days' time to the complainant to appear, and thereafter may dismiss the complaint and acquit the accused.
The Court was careful to identify the precise jurisdictional trigger for Section 279. The power under that section can be exercised by a Magistrate only at the stage after process has been issued against the accused. The provision clearly stipulates that the complaint must have been fixed for a day appointed for the appearance of the accused. Section 279 cannot be invoked when process against the accused is yet to be issued.
Critically, a dismissal under Section 279 amounts to an acquittal of the accused. An acquittal order is appealable in nature, and a complainant who wishes to challenge it must file an appeal — with leave of the High Court under Sub-Section (4) of Section 419 of the BNSS. Such an order is not amenable to challenge under Section 528 BNSS or by invoking the revisional jurisdiction of the court.
Why the Pre-Cognizance Stage Changes the Analysis
In Abdul Razzak Beigh's case, the trial Magistrate had dismissed the complaint at the pre-cognizance stage — before process had been issued to the accused. That dismissal was not one contemplated under Section 279 of the BNSS. Because no process had been issued, the accused had never been called to appear; accordingly, no acquittal could follow from such a dismissal.
Since the order did not amount to an acquittal, it was not appealable. The Court held that a petition under Section 528 BNSS to challenge an order of dismissal of complaint at the pre-cognizance stage would be maintainable “if it has resulted in failure of justice.” A revision petition would equally lie in such circumstances. The petition filed by Abdul Razzak Beigh was therefore held to be maintainable.
Merits: Counsel's Unexplained Absence Not Attributable to Petitioner
Having determined maintainability, the Court turned to the merits. The petitioner's case was that on the day the complaint was dismissed for non-prosecution, he was under a bona fide belief that his counsel would appear on his behalf. His counsel, however, faced some personal difficulty at home and could not appear — and crucially, did not inform the petitioner of his inability to attend.
These assertions were unrebutted. The respondent had not appeared before the High Court despite service to contest the petition.
The Court found that the petitioner's non-appearance before the trial Magistrate was not deliberate but was caused by reasons beyond his control. Declining to restore the complaint in those circumstances, the Court held, would cause grave prejudice to the petitioner and result in failure of justice. This was a fit case for the exercise of the Court's powers under Section 528 of the BNSS.
Outcome
Justice Sanjay Dhar allowed the petition. The impugned order passed by the trial Magistrate dismissing the complaint was set aside. The complaint was restored to its original position. The trial Magistrate was directed to proceed further in the matter in accordance with law. A copy of the order was directed to be sent to the trial Magistrate for information. The petition was disposed of accordingly.