[Section 256 CrPC] Power To Acquit Accused Must Be Exercised On Definite Conclusion That Complainant Doesn't Desire To Prosecute: Kerala High Court

Justice C.S. Dias stated that the Court must not perfunctorily acquit an accused u/s 256 of CrPC. Such power must be exercised judicially and not whimsically or mechanically, the Court observed thus:

“It is far too well settled that the power of the Magistrate under Sec.256 Cr.P.C to acquit an accused should be exercised judicially, based on a definite conclusion that the complainant no longer desires to prosecute the complaint. The power is not to be indiscriminately exercised whimsically and mechanically for the statistical purposes of removing a docket from its rack as it undermines the cause of justice. Instead, the judicious course would be to direct the complaint to appear for the hearing, if it is imperative, and decide whether the drastic step of acquittal is to be passed in case he fails to appear.”

The appellant (complainant) filed a complaint before the Magistrate alleging that the respondent (accused) has committed an offence u/s 138 of the Negotiable Instruments Act. The Magistrate acquitted the respondent u/s 256 (1) of the CrPC. The appellant has challenged the acquittal before the High Court.

Section 256 of CrPC provides for dismissal of case on default of complainant. It states that the Court may, after issuance of summons, if the complainant does not appear, acquit the accused unless for some reason it thinks it proper to adjourn the hearing of the case to some other day.

Also Read: Power Of Court To Acquit Accused U/S 256 CrPC Upon Non-Appearance Of Complainant Must Be Exercised Judiciously: Telangana High Court

The Counsel for the appellant Advocate K.B. Ganesh argued there was no appearance on August 14 because the counsel for the complainant by mistakenly noted down the date for appearance as September 14. It was contended that the Magistrate dismissed the compliant without giving the complainant an opportunity to explain his absence. It was further argued that the Court failed to take note of the fact that the complainant was diligently prosecuting the compliant.

The Court relied upon the decision in Govindan Nambiar v. Chidambareswara (1961) stated that the power u/s 256 CrPC must be exercised judicially and judiciously and not in a manner that makes the remedy worse than the disease. The Court further relied upon the decision in Kunhumon v. Kotha and others (1962) to state that the Magistrates should not use the power to acquit an accused as a shortcut to obtain quick and easy disposals.

The Court noted that the day on which the appellant was absent in Court, the matter was not posted for trial nor there was any order directing the appellant to be present in Court that day. It stated that the Magistrate ought to have adjourned the matter to a later date to provide the complainant a reasonable and fair opportunity to prosecute his complaint. The Court observed that the impulsive decision of the Magistrate to acquit the accused in a hasty manner has led to miscarriage of justice.

On the above observations, the Court set aside the order of the acquittal issued by the Magistrate and restored the complaint.

Counsel for the respondents: Public Prosecutor Seetha S

Citation: 2023 LiveLaw (Ker) 555

Case title: James A.C. v K.A. Sakthidharan

Case number: CRL.A NO. 16 OF 2011

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