Supreme Court: Under which circumstances absence Of Complainant Will Not Lead To Acquittal Of Accused U/S S.256 CrPC/S.279 BNSS ?

The Appellant lodged a complaint for offence committed under Section 304A of Indian penal Code, 1860 alleging that it was due to the criminal medical negligence of the hospital and the doctors attending on his son that he could not survive the hemorrhage caused by fall from staircase.The Respondents were arrayed as some of the Accused in the complaint. Upon service of summons on them, the Respondents approached the High Court by presenting an application seeking quashing of such summons. Upon hearing the petition, a Judge of the High Court stayed proceedings before the Judicial Magistrate. Thereafter, national lockdown was clamped owing to outbreak of COVID. The Standard Operating Procedurefor functioning of courts was circulated. Despite proceedings of the complaint having been stayed by the High Court and despite the subsistence of the SoP, duly notified, the Judicial Magistrate called the complaint case. Despite repeated calls, the Appellant had remained absent. Accordingly, the Judicial Magistrate required the Appellant to show-cause why the complaint shall not be dismissed and, accordingly, fixed date for his response.The Appellant was attacked by the COVID virus and was under medical treatment owing to which he had not risked his life by appearing before the Judicial Magistrate. Thus, he was again found absent. The Judicial Magistrate dismissed the complaint for default.

Code of Criminal Procedure, 1973; Section 256 (corresponding to Bharatiya Nagarik Suraksha Sanhita, 2023; Section 279) - Non-appearance of a complainant will not always result in the acquittal of the accused. Acquittal under this section is warranted only when the complainant is absent on the date which was set for the appearance of the accused. If the date was set for a purpose other than the appearance of the accused, the absence of the complainant on such a date will not warrant the acquittal of the accused. (Para 19 & 20)

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1593 of 2025 (Arising out of SLP (Crl.) No. 205 of 2025)

Decided On: 17.03.2025

Ranjit Sarkar Vs. Ravi Ganesh Bhardwaj and Ors.

Hon'ble Judges/Coram:

Dipankar Datta and Manmohan, JJ.

Author: Dipankar Datta, J.

Citation: 2025 INSC 415,MANU/SC/0410/2025.

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Whether Magistrate can dismiss the complaint for dishonour of cheque after recording of evidence of complainant?

 In the instant case, we notice that there is a specific

averment in the Special Leave Petition(s) that the appellant had

led its evidence in the case and thereafter had moved an

application under Section 311 of the Code to summon and

examine further witnesses. In Paragraph 5(u), it is stated that

the trial court as well as the High Court did not take into

consideration that the complainant’s cross-examination had been

over in Complaint Case Nos.621742/16, 621743/16 and

621744/16, and no cross-examination was sought in other cases.

Rather, CW-1’s cross-examination in the above three complaint

cases was adopted. There appears no specific denial of the

aforesaid factual position. However, we find that neither the High Court nor the learned Magistrate has taken notice of the aforesaid position. Both the courts below thus failed to consider whether in the facts of the case under the proviso to sub-section (1) of Section 256, the court could proceed with the matter after

dispensing with the attendance of the complainant. Further, if the complainant had not appeared to press the application under Section 311 of the Code, the learned Magistrate could have rejected the application under Section 311 of the Code and proceeded with the case on basis of the available evidence. We are, therefore, of the considered view that the learned Magistrate was not justified in straight away dismissing the complaint(s) and ordering acquittal of the accused on mere nonappearance

of the complainant. The High Court too failed to take notice of the aforesaid aspects. Thus, the orders impugned are liable to be set aside. {Para 13}

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 657-664 OF 2023

M/s. BLS INFRASTRUCTURE LIMITED Vs M/s. RAJWANT SINGH & OTHERS 

Author: MANOJ MISRA, J.

Dated: March 01, 2023

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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.

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 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

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When court should not dismiss complaint case in default if complainant is absent on particular date?

What was the purpose of including a
 provision like Section 247 in the old Code (or
 Section 256 in the new Code). It affords some
 deterrence against dilatory tactics on the part
 of a complainant who set the law in motion
 through his complaint. An accused who is per
 force to attend the court on all posting days

 can be put to much harassment by a complainant
 if he does not turn up to the court on occasions
 when his presence is necessary. The section,
 therefore, affords protection to an accused
 against such tactics of the complainant. But
that does not mean if the complainant is absent,
the court has a duty to acquit the accused is
 17. invitum. Reading the section in
its entirety would reveal that two constraints
are imposed on the court for exercising the
power under the section. The first is, if the
court thinks that in a situation it is proper to
adjourn the hearing then the Magistrate shall
not acquit the accused. The second is, when the
Magistrate considers that personal attendance of
the complainant is not necessary on that day the
Magistrate has the power to dispense with his
attendance and proceed with the case. When the
court notices that the complainant is absent on
a particular day the court must consider whether
personal attendance of the complainant is
essential on that day for the progress of the
case and also whether the situation does not
justify the case being adjourned to another date the case being adjourned to another date

due to any other reason. If the situation does
 not justify the case being adjourned the court
 is free to dismiss the complaint and acquit the
 accused. But if the presence of the complainant
on that day was quite unnecessary then resorting
to the step of axing down the complaint may not
be a proper exercise of the power envisaged in
the section. The discretion must therefore be
exercised judicially and fairly without
impairing the cause of administration of
criminal justice." (Emphasis added)
 12.The Apex Court has thus reiterated that if the
 complainant remains absent, there is no duty on the
 Court to acquit the accused in invitum. In fact the
 Apex Court held that whenever it is noticed that
 complainant is absent on a particular date, the Court
 must consider whether personal attendance of the
 complainant was essential on that date for the progress
 of the case. It will be also necessary to refer to a
 decision of the Apex Court in the case of Mohd. Azeem
 v. A. Venkatesh and Anr [(2002) 7 Supreme Court Cases
 726] wherein the Apex Court held that a single default

 on the part of the complainant cannot be a ground to
 exercise power under section 256 of the said Code.
 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 CRIMINAL APPELLATE JURISDICTION
 CRIMINAL APPLICATION NO.1739 OF 2008
 India.. Fintrade Limited Applicant
 Versus
 Cherry.. Fashions Ltd & Ors. Respondents

CORAM : A.S.OKA, J.
DATE : 03rd April 2009.
Citation; 2009 ALLMR(cri)1657

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