Sec 256 CrPC - Not Proper To Acquit Accused Merely For Non-Appearance Of Complainant Who Was Already Examined : Supreme Court

Where the complainant had already been examined as a witness in the case, it would not be appropriate for the Court to pass an order of acquittal merely on non-appearance of the complainant, the Supreme Court observed in a judgment today.

In this case, the complainant filed eight complaints against the accused under Section 138 of the Negotiable Instruments Act. The statement of the complainant had been recorded and the complainant’s evidence was closed with a direction to list the matter for recording of defence evidence as also for consideration of application under Section 311 of the Code of Criminal Procedure, 1973. However, Magistrate later dismissed the criminal complaints for non-appearance of the complainant. The Delhi High Court upheld this order of the Magistrate.

Before the Apex Court, it was contended that as the statement of the complainant had been recorded and the complainant was also subjected to cross-examination, there existed admissible evidence on record in support of the complaint case. In these circumstances, even if the complainant was absent, the Magistrate could have proceeded to decide the case on merits, it was contended.

Referring to the decisions in Associated Cement Co. Ltd. v. Keshvanand (1998) 1 SCC 687, the bench of Justices Sudhanshu Dhulia and Manoj Misra said:

it was held that where the complainant had already been examined as a witness in the case, it would not be appropriate for the Court to pass an order of acquittal merely on non-appearance of the complainant. Thus, the order of acquittal was set-aside and it was directed that the prosecution would proceed from the stage where it reached before the order of acquittal was passed.

The bench noted 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 Cases and no cross-examination was sought in other cases.  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, the bench observed while allowing the appeal.

Case details

BLS Infrastructure Limited vs Rajwant Singh | 2023 LiveLaw (SC) 153 | CrA 657-664 OF 2023 | 1 March 2023 | Justices Sudhanshu Dhulia and Manoj Misra

For Petitioner(s) Mr. Maninder Singh, Sr. Adv. Mr. Neeraj Gupta, Adv. Mr. Deepak Goel, AOR Ms. Urvashi Sharma, Adv.

For Respondent(s) Mr. Maibam Nabaghanashyam Singh, AOR Mr. Amit Punj, Adv.

Headnotes

Code of Criminal Procedure, 1973 ; Section 256 -  Where the complainant had already been examined as a witness in the case, it would not be appropriate for the Court to pass an order of acquittal merely on non-appearance of the complainant - Referred to Associated Cement Co. Ltd. v. Keshvanand (1998) 1 SCC 687. (Para 12)

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