Tarlok Singh u Chauhan J (Oral):
Heard. o By the medium of this application, appellant has sought co nd C onation of delay of 55 days i.e. crept in filing of the appeal. h Though the application has vehemently opposed by the lea g rned counsel for the respondent, however, I find that there is s i ufficient cause for condoning the delay as has been spelt out in
H para 3 of the application. Moreover, the application is duly supported by an affidavit of the applicant. Accordingly, the application is allowed and the delay of 55 days in filing the appeal is condoned. Application disposed of.
Cr.MP(M) No. 753 of 2016
2. Leave to appeal granted. Appeal be registered. Cr. Appeal No.426 of 2016
3. This appeal is directed against the order dated 25.2.2016, whereby complaint filed by the appellant came to be
Whether the reporters of the local papers may be allowed to see the Judgment? Yes.
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dismissed by the learned Trial Magistrate and further ordered the statutory acquittal of the accused/respondent. .
4. The impugned order reads thus:
"25.2.2016 P
Present: None. .
Case called again f and H again none has appeared on behalf of complaint. Let be called after lunch. S o d/-
Present: Non r e. Case tcalled repeatedly but none
appeared on b u ehalf of complainant. Today case was fixed for filing o PF and CA and summon to accused, but despite having knowledge of the date of the hearing neither coC mplainant nor his counsel appear. Hence this court is of view that complainant conduct does not deserve any h
further leniency. It is not a fit case to call through fresh g
notice, accordingly appreciating his conduct and also i
being the right of speedy trial of accused which is also fundamental right. This court is of a considered opinion
H
that it is a fit case where for want of non appearance of complainant, complaint is liable to be dismissed. Accordingly, the complaint is dismissed under Section 256 of Cr.P.C for non appearance. Statutory acquittal is announced in favour of accused. File after due
completion be consigned to record room."
5. Section 256 of the Code of Criminal Procedure reads thus:
" 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
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appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks it proper to adjourn the heari . ng of the case to some other day:
Provided that where the complainant is repr . es P ented by a pleader or by the officer conductin H g the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant f is not necessary, the Magistrate may dispe ns o e with his attendance and proceed with the case. (2) The provisio r ns o t f sub- section (1) shall, so far as may be, apply also to cases where the non- appearanc u e of the complainant is due to his death.
6. It is eviden o t from the aforesaid order that the case was listed for filing o C f process fee and correct address of the accused, but the l h earned trial court has not at all come to the conclusion that pre g sence of the complainant on the said date was absolutely e i ssential and has straightaway dismissed the application by
H invoking the provisions of Section 256 of Cr.PC. 7. Furthermore, the learned trial Magistrate has not even recorded its satisfaction as to why it was dismissing the complaint and in such circumstances mainly by holding that 'this
court is of the considered opinion that it is a fit case where for want
of non appearance of complainant, complaint is liable to be
dismissed.", would not suffice.
8. Acquittal of the accused under this section is not automatic. It cannot be said that this section contemplates that the order of acquittal should be a matter of routine and followed
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automatically on the absence of the complainant. There has to be an application of mind to the question as to whether the order . of acquittal under the aforesaid section should be passed. P
9. When the court notices that the comp . lainant is absent on a particular day, it is imperative for t H he court to see whether personal attendance of the complaina f nt i s essential on that date and also whether the situation do es o not justify the case being adjourned. On account of singula r r d t efault in appearance on the part of complainant, dismissal of the complaint would not be proper and can also be termed as arbit u rary.