[S.256 CrPC] Power Of Acquittal Due To Death/Non-Appearance Of Complainant Shouldn't Be Whimsically Exercised For Statistical Purpose Of Disposal: Kerala HC

The Kerala High Court has clarified that the power under Section 256 of CrPC which allows for the acquittal of the accused in case of non-appearance or death of the complainant should not be indiscriminately exercised.

“It is well settled that the Magistrate can invoke the power under Section 256 Cr.P.C only after arriving at a definite conclusion that the complainant no longer desires to prosecute the complaint and the said power is to be exercised judicially and that the same cannot be indiscriminately exercised whimsically and mechanically for the statistical purposes of disposal” observed Justice Johnson John while allowing the plea.

The appellant was the complainant in a matter before the Judicial First Class Magistrate Court II in Nedumangad where the accused was acquitted of the offence under Section 138 of the Negotiable Instruments Act, 1881 under Section 256 CrPC on the ground that the complainant was not present either in party or by pleader.

The counsel for the appellant submitted that the magistrate had committed a mistake in acquitting the accused without affording the appellant an opportunity to explain the reason for his absence. The appellant pointed out that he was present for all the hearings except the one which was posted for the appearance of the accused where the presence of the complainant was not necessary.

He added that the case had been adjourned by notification on the 12th of May 1999 but as there was a mistake in the date given in the order, the appellant had not attended that hearing either.

The court referred to the decision in Bijoy v. State of Kerala which clarified the provision under Section 256 CrPC to state that the magistrate ought to provide opportunities to the complainant if they fail to appear before the court.

As such, the court directed that the impugned order be set aside and for the matter to be disposed of as expeditiously as possible taking note that it was from the year 1999.

Case Citation: 2024 LiveLaw (Ker) 246

Case Title: Sreekumar v. SK Valsalan and anr.

Case Number: Crl. A. No. 2382 of 2007

Click here to read/download the order