Wednesday, 4 December 2019

Whether magistrate can acquit accused U/S 256 of of CRPC if complainant remains absent?

The ingredients of Section 256 (1) are (I) summons must have
been issued on a complaint, (ii) the Magistrate should be of the opinion that
for some reasons, it is proper to adjourn the hearing of the case to some
other date, and (iii) the date on which the order under Section 256(1) can

be passed is the day appointed for appearance of the accused or any day
subsequent thereto, to which the hearing of the case has been adjourned.
Section 256(1) mandates the Magistrate to acquit the accused unless for
some reason he thinks it proper to adjourn the hearing of the case. If an
exceptional course is to be adopted, it must be spelt out. The discretion
conferred upon the Magistrate, however, must be exercised with great care
and caution. The conduct of the complainant for the said purpose is of
immense significance. He cannot allow a case to remain pending for an
indefinite period. There exists a distinction between a civil case and a
criminal case. Speedy trial is a fundamental right of an accused. The orders
passed by the competent Court of law as also the provisions of the Code of
Criminal Procedure must be construed having regard to the constitutional
scheme and the legal principles in mind.

 Under Section 256, complainant can remain absent provided a Magistrate dispenses with his
attendance and for dispensation of his attendance an application should
have been made. No such application, admittedly was made and the only
excuse given is advocate advised him not to remain present.
Therefore, if the summons has been issued on complaint and on
the date appointed for the appearance of accused or any day subsequent
thereto to which the hearing may be adjourned, the complainant does not
appear, the Magistrate shall, acquit the accused, unless for some reason the
Magistrate thinks it proper to adjourn the hearing of the case to some other
day. Therefore, Section 256 mandates that if the complainant does not
remain present on the appointed day after summons has been issued on
complaint and unless attendance of complainant has been dispensed with,
the Magistrate shall acquit the accused. If the Magistrate feels that the order
of acquittal should not be passed on that date, the Magistrate has to give
reasons. 
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE SIDE
CRIMINAL APPEAL NO.450 OF 2003

M/s Kothari Enterprises,  V/s. M/s Dharendra Agro Food Industries
Ltd.,

CORAM : K.R.SHRIRAM, J.
DATE : 27th NOVEMBER 2019


1 This appeal is filed under Section 378 (4) of the Code of
Criminal Procedure impugning an order of acquittal passed on 14th June
2000 by the Metropolitan Magistrate, 20th Court, Mazgaon, Mumbai. The
impugned order reads as under :

“Case for hearing. Complainant and advocate are absent. Accused with
advocate present.
Case stands dismissed u/s 256 of Cr.P.C. Accused stands acquitted and bail
bond stands cancelled.”
2 With the assistance of the APP – Ms. Dabholkar I have perused
the appeal papers. Though advocate appeared for appellant, he was unable
to assist the court.
3 Admittedly in this case, process, i.e., summons, has been issued
and even plea has been recorded.
4 Section 256 of the Code of Criminal Procedure reads as under :
256. Non- appearance or death of complainant.
(1) If the summons has been issued on complaint, and on the day appointed
for the appearance of the accused, or any day subsequent thereto to which
the hearing may be adjourned, the complainant does not appear, the
Magistrate shall, notwithstanding anything hereinbefore contained, acquit
the accused, unless for some reason he thinks it proper to adjourn the
hearing of the case to some other day: Provided that where the complainant
is represented by a pleader or by the officer conducting the prosecution or
where the Magistrate is of opinion that the personal attendance of the
complainant is not necessary, the Magistrate may dispense with his
attendance and proceed with the case.
(2) The provisions of sub- section (1) shall, so far as may be, apply also to
cases where the non- appearance of the complainant is due to his death.
5 The ingredients of Section 256 (1) are (I) summons must have
been issued on a complaint, (ii) the Magistrate should be of the opinion that
for some reasons, it is proper to adjourn the hearing of the case to some
other date, and (iii) the date on which the order under Section 256(1) can

be passed is the day appointed for appearance of the accused or any day
subsequent thereto, to which the hearing of the case has been adjourned.
Section 256(1) mandates the Magistrate to acquit the accused unless for
some reason he thinks it proper to adjourn the hearing of the case. If an
exceptional course is to be adopted, it must be spelt out. The discretion
conferred upon the Magistrate, however, must be exercised with great care
and caution. The conduct of the complainant for the said purpose is of
immense significance. He cannot allow a case to remain pending for an
indefinite period. There exists a distinction between a civil case and a
criminal case. Speedy trial is a fundamental right of an accused. The orders
passed by the competent Court of law as also the provisions of the Code of
Criminal Procedure must be construed having regard to the constitutional
scheme and the legal principles in mind.
6 In this case, admittedly complainant has remained absent on
many dates. This is because the appeal itself says that on several dates (not
all dates) complainant was present before the Trial Court. The matter was
listed on 14 occasions before the Trial Court. Complainant was absent on 5
occasions, which is quite a large number almost 36% (more than 1/3rd) in
14 dates. It is the case of appellant that on 14-6-2000, the date on which
the impugned order was passed, complainant and his advocate were absent
as complainant was informed by his advocate not to remain present and the
advocate himself was busy in some other court. Under Section 256,

complainant can remain absent provided a Magistrate dispenses with his
attendance and for dispensation of his attendance an application should
have been made. No such application, admittedly was made and the only
excuse given is advocate advised him not to remain present.
7 Therefore, if the summons has been issued on complaint and on
the date appointed for the appearance of accused or any day subsequent
thereto to which the hearing may be adjourned, the complainant does not
appear, the Magistrate shall, acquit the accused, unless for some reason the
Magistrate thinks it proper to adjourn the hearing of the case to some other
day. Therefore, Section 256 mandates that if the complainant does not
remain present on the appointed day after summons has been issued on
complaint and unless attendance of complainant has been dispensed with,
the Magistrate shall acquit the accused. If the Magistrate feels that the order
of acquittal should not be passed on that date, the Magistrate has to give
reasons. In this case, the Magistrate has acquitted the accused as provided
under Section 256 because he did not find any reason to adjourn the
hearing of the case to some other day. I have to also note, on 4 occasion
earlier also, complainant was absent but Magistrate did not dismiss the
complaint on these dates and acquit the accused. Only on the 5th time,
when complainant remained absent and that too without filing any
exemption application, the Magistrate passed the order impugned. The

Magistrate in terms of sub-section (1) of Section 256 exercises wide
jurisdiction. Although an order of acquittal is of immense significance, there
cannot be any doubt or dispute whatsoever that the discretion in this case
had been properly exercised by the Magistrate. In such a situation, I cannot
say there is any illegality in the order that requires this Court’s interference.
8 In the circumstances, I have to dismiss the appeal. Appeal
dismissed.
(K.R. SHRIRAM, J.)

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