Dismissal Of Complaint Before Cognisance Is Not Acquittal, Can Be Challenged Under Section 528 BNSS: J&K&L High Court:

The High Court of Jammu & Kashmir and Ladakh has clarified the distinction between pre-cognizance dismissal of a criminal complaint and dismissal after issuance of process, holding that only the latter attracts Section 279 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) and results in an acquittal appealable under Section 419(4).The court went on to explain that where a complaint is dismissed before cognizance is taken or before process is issued, the order does not amount to an acquittal and can be assailed by invoking the High Court's inherent jurisdiction under Section 528 BNSS, or through revision where failure of justice is demonstrated. Justice Sanjay Dhar rendered the ruling while deciding a petition challenging the dismissal of a private complaint for non-prosecution. The principal question before the Court was whether a petition under Section 528 BNSS was maintainable against such an order or whether the complainant was confined to the appellate remedy available against an order of acquittal under Section 419 of the BNSS. Answering the issue, the Court held that the remedy depends upon the stage at which the complaint is dismissed. The court explained that while dismissal under Section 279 BNSS after issuance of process culminates in an acquittal that is appealable, dismissal of a complaint at the pre-cognizance stage does not terminate proceedings by way of acquittal and therefore remains amenable to the High Court's inherent jurisdiction under Section 528 BNSS. Challenging the order of the trial Magistrate dismissing his complaint for non-prosecution the petitioner through Counsel Taha Khalil stated that he had remained under the bona fide belief that his counsel would appear before the Magistrate, but owing to unforeseen personal difficulties the counsel failed to attend the proceedings and could not communicate the same to him. Before examining the explanation for the petitioner's absence, the Court considered the preliminary objection regarding maintainability of the petition under Section 528 BNSS in light of Section 279 BNSS, which governs dismissal of complaints on account of the complainant's non-appearance. Analysing the scope of Section 279 BNSS the court held that the provision operates only after summons have been issued and the accused has been called upon to appear before the Court.Justice Dhar observed that Section 279 expressly contemplates dismissal of a complaint on the date fixed for the appearance of the accused or on any subsequent date after issuance of process. Consequently, the provision has no application where the complaint is dismissed before the Court has taken cognizance and issued process, he maintained.Justice Dhar remarked,"The power under Section 279 of BNSS can be exercised by a Magistrate only at the stage post issuance of process against the accused... Power under Section 279 of BNSS cannot be invoked by the Magistrate at the stage when process against the accused is yet to be issued." Explaining the consequence of dismissal under Section 279 BNSS, the Court observed that such dismissal statutorily results in the acquittal of the accused and therefore attracts the appellate remedy prescribed under Section 419(4) BNSS.It added,"The consequence of dismissal of the complaint for non-appearance of complainant is acquittal of the accused. An order which amounts to acquittal of the accused is appealable in nature... Therefore, the order of acquittal under Section 279 of BNSS is an appealable order and cannot be challenged under Section 528 of BNSS or by invoking revisional power of the court." The Court, however, distinguished the case before it by noting that the complaint had been dismissed at the pre-cognizance stage, before issuance of process against the accused. Drawing this distinction, Justice Dhar observed,"Dismissal of the complaint is not one as contemplated under Section 279 of BNSS. Such an order would not amount to acquittal of the accused, as such, it is not appealable in nature." The Court consequently held that such an order remains open to challenge under the High Court's inherent jurisdiction where failure of justice is established. The Court observed,"A petition under Section 528 of BNSS to challenge an order of dismissal of complaint at pre-cognizance stage would be maintainable if it has resulted in failure of justice. Even a Revision Petition would be maintainable in such a case." On the facts of the case, the Court accepted the petitioner's explanation that his absence was neither deliberate nor intentional and held that refusal to restore the complaint would result in grave prejudice and failure of justice. Declaring the petition maintainable, the High Court thus set aside the impugned order, restored the complaint to its original file and directed the trial Magistrate to proceed further in accordance with law.Case: Abdul Razzak Beigh v. Altaf Ahmad KhanCitation: 2026 LiveLaw (JKL) 317Counsel for Petitioner: Mr. Taha Khaleel,...

Dismissal Of Complaint Before Cognisance Is Not Acquittal, Can Be Challenged Under Section 528 BNSS: J&K&L High Court:

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Dismissal Of Complaint Before Cognisance Is Not Acquittal, Can Be Challenged Under Section 528 BNSS: J&K&L High Court:

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