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2014 DIGILAW 338 (CHH)

Vimal Agrawal v. Goldi Panjwani

2014-09-09

SANJAY K.AGRAWAL

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Order Sanjay K. Agrawal, J. 1. This revision is directed against the impugned order dated 11.02.2014 passed by Judicial Magistrate, First Class, Bilha, District Bilaspur in Complaint Case No. 197/2013 by which the complaint filed by the appellant has been dismissed for want of prosecution. 2. Shri Sameer Singh, learned counsel appearing for the appellant would submit that the appellant has regularly appeared before the Judicial Magistrate right from 6.3.2013 till 7.2.2014 either personally or through his counsel but he could not appear on 11.02.2014 as his counsel could not note the date of hearing and, therefore, the impugned order be set aside and the matter be remanded back to the said court for hearing and disposal in accordance with law. 3. Per contra, Shri Dharmesh Shrivastava, learned counsel appearing for the respondent would support the order impugned. 4. I have heard learned counsel appearing for the parties and perused the order impugned with utmost circumspection. 5. In order to have proper comprehension of the attack made to the order dismissing the complaint, it would be profitable to notice Section 256(1) of the Code, which provides as under:- Section 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 herein before 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. 6. (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. 6. From the careful and close perusal of Section 256 of the Code, it appears that in a summons case, instituted on a complaint, if the complainant is absent on the date of hearing, the Magistrate has to follow either of the three courses, namely: (1) Acquit the accused; (2) To adjourn the case; and (3) To dispense with the attendance of the complainant and to proceed with the case. 7. In a decision reported in Associated Cement Co. Ltd. vs. Keshvanand, (1998) 1 SCC 687 , the Supreme Court has held that Section 256 of Code, imposes two constraints on the Court for exercising the power for dismissing the complaint and provides as under:-- 17. 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 adjoined 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." 8. 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." 8. In a decision reported in Memon Mohmedrafik Rasulbhai vs. Desai Rameshkumar Virsanghbhai and another, 2010 Cri.L.J. 2543, the High Court of Gujarat has held that in a complaint filed under Section 200 of the Code for offence punishable under Section 138 of the Negotiable Instruments Act, 1881, if the complainant was present before the Court on all days except earlier on the date of order, dismissal of the complaint and the acquittal of the accused persons on the ground of absent of complainant is not justified. 9. Thus, before proceeding to dismiss the complaint, in absence of complainant in exercise of jurisdiction under 256 of Code of Criminal Procedure it must be considered by the Court whether the presence of the complainant is really necessary and the Court should act judicially and not capriciously as the duty has been cast on the Court to consider whether the personal attendance of the complainant is or is not necessary. The discretion vested in the Court should be exercised carefully and not hastily. An order of acquittal under Section 256 of the Code would bar a fresh trial and therefore, such an order is of immense significance. The order must show that the wide discretion vested in the Court had properly been exercised in accordance with law. 10. Fact remains that complaint was filed on 6.3.2013 and the same had been dismissed on 11.02.2014 on account of absence of the applicant/complainant. Record of the trial Court would show that appellant has appeared before the said Court right from 6.3.2013 till 7.2.2014 either personally or through his counsel and even his statement has already been recorded and the case J was fixed for evidence of defence witnesses on 07.11.2013. It has not been recorded by the trial Magistrate that presence of the appellant/complainant was absolutely necessary on 11.2.2014 and no reason has been assigned by the trial Court as to why case could not have been adjourned for some other date. 11. Resultantly, the acquittal appeal is allowed. Impugned order is set aside. It has not been recorded by the trial Magistrate that presence of the appellant/complainant was absolutely necessary on 11.2.2014 and no reason has been assigned by the trial Court as to why case could not have been adjourned for some other date. 11. Resultantly, the acquittal appeal is allowed. Impugned order is set aside. Complaint Case No. 197/2013 is restored to its original number in the file of Judicial Magistrate, First Class, Bilha for hearing and disposal in accordance with law on its own merits. Record of the court below be sent back forthwith. Parties are directed to appear before the said court on 22nd September, 2014. Appeal allowed.