The Jammu & Kashmir and Ladakh High Court has clarified that a complaint dismissed at the pre-cognizance stage - before the court issues process against an accused - is not treated as an acquittal and can therefore be challenged under Section 528 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) if it results in a failure of justice. The Court also restored a complaint that had been dismissed due to the complainant's absence after finding that the non-appearance was not deliberate.
Background of the Case
The petition was filed by Abdul Razzak Beigh after a trial Magistrate dismissed his complaint for non-prosecution when neither he nor his counsel appeared before the court. The petitioner submitted that he had genuinely believed his advocate would attend the hearing, but the counsel was unable to appear because of personal difficulties and failed to inform him in advance. The respondent did not contest these assertions despite being served with notice.
Before examining the facts, Justice Sanjay Dhar first considered whether a petition under Section 528 of the BNSS was maintainable against an order dismissing a complaint.
Court's Observation
Justice Sanjay Dhar explained that Section 279 of the BNSS applies only after summons have been issued and the accused has been called to appear. If a complaint is dismissed at that stage because the complainant remains absent, the consequence is an acquittal, making the order appealable rather than revisable.
However, the Court drew a clear distinction where the complaint is dismissed before cognizance.
The bench observed,
“Such an order would not amount to acquittal of the accused... 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.”
The Court further found that the petitioner's absence was beyond his control and not intentional.
Observing the circumstances, the bench said that denying restoration of the complaint would cause "grave prejudice" to the petitioner and lead to a failure of justice.
Court's Decision
Allowing the petition, the High Court set aside the trial Magistrate's order dismissing the complaint. It restored the complaint to its original position and directed the trial Magistrate to proceed with the matter in accordance with law.
The petition was disposed of with these directions.
Case Details
Case Title: Abdul Razzak Beigh v. Altaf Ahmad Khan
Case Number: CRM(M) 742/2025
Judge: Justice Sanjay Dhar
Decision Date: 21 July 2026
-300x169.webp)
