'Absence Of Party On A Few Occasions Is Not Sufficient To Dismiss Case For Non-Prosecution': Bombay High Court

The Bombay High Court has held that a complaint cannot be dismissed for non-prosecution under Section 256 of the Code of Criminal Procedure merely because the complainant or counsel was absent on a few dates of hearing. The Court observed that principles of natural justice require giving the complainant a fair opportunity to prosecute the complaint on the merits, and that a harsh or hyper-technical approach should be avoided.Justice M. M. Nerlikar was hearing a criminal appeal filed challenging the order dated 7 January 2023 passed by the Additional Chief Judicial Magistrate, whereby the Magistrate had dismissed the complaint under Section 138 of the Negotiable Instruments Act for want of prosecution and acquitted the accused, on the ground that the complainant and his counsel had remained absent on certain dates.The appellant contended that he had diligently attended the proceedings and that the case was once referred to the Lok Adalat for settlement. He pointed out that on multiple dates, both he and his counsel were present, while on some dates, the Presiding Officer was on leave. The absence on 5 January and 7 January 2023, he explained, was due to a bona fide impression that the case had been adjourned to 13 January 2023, after the Presiding Officer was on leave in December 2022. The Court, after examining the Roznama, found that the complainant and his counsel were indeed present on several occasions and that their absence on a few dates did not justify dismissal of the complaint. It observed: “Merely on a few occasions, if both are absent, that by itself would not be sufficient to pass the order of dismissal for non-prosecution and thereby acquittal of the accused. Considering the attending circumstances appearing on record, it would be just and proper to afford a reasonable opportunity to the appellant to pursue his cause on merits.”The Court observed that the appellant gave a sufficient explanation so as to warrant interference in the impugned. It held that the trial court should have adopted a liberal approach and granted an opportunity to the complainant to lead evidence. Referring to its earlier decision in Shaikh Akbar Talab v. A. G. Pushpakaran [2018 ALL MR (Cri) 1208], the Court reiterated that both the complainant and the accused must be afforded the chance to contest the case on merits.“The principles of natural justice are the cardinal principles of law and the backbone of the judicial process. Opportunity of hearing and right to present the case are statutory incorporation of natural justice by mandating procedural safeguards, and therefore, the Court below ought not to have taken a harsh and hyper-technical view by dismissing the complaint for want of prosecution and accordingly violates procedural safeguards,” the Court observed.Accordingly, the Court quashed the Magistrate's order dated 7 January 2023 and restored the Summary Case to its original stage. Case Title: Amit Sunarlal Shahu v. Hare Madhav Electronics [Criminal Appeal (Stamp) No. 2237 of 2023 with Criminal Application (APPA) No. 322 of 2023]Click Here To Read/Download Order

'Absence Of Party On A Few Occasions Is Not Sufficient To Dismiss Case For Non-Prosecution': Bombay High Court

Saksham Vaishya

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