The Bombay High Court has ruled that under Section 256 of the Code of Criminal Procedure, if summons have been issued in a complaint and the date appointed for the appearance of accused, the complainant does not appear, the Magistrate shall acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day.
Justice KR Shriram was hearing a criminal appeal filed by M/s Kothari Enterprises against an order of acquittal dated June 14, 2000 passed by Metropolitan Magistrate, Mazgaon.
The impugned order states-
"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."
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.
After examining Section 256(1), Court noted-
"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."
In the present case, admittedly complainant remained absent on 5 occasions out of the 14 times the matter was listed before the Trial Court. On the day, the said order was passed, the complainant's advocate was also not present.
It was contended by the appellant that on that day, 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", the bench pointed out.
Court further noted-
"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."
Dismissing the appeal, Court said-
"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."
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