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S.256 CrPC | Court Must Apply Its Judicial Discretion & Record Finding Justifying Dismissal Of Case: Calcutta High Court

Aaratrika Bhaumik
25 May 2022 2:47 PM GMT
Calcutta high court, habeas corpus plea, West Bengal government, son, father, missing, correctional home, report, Justice Shampa Sarkar and Justice Bibhas Ranjan De, Justice R. K. Kapur and Justice Krishna Rao, Presidency Correctional Home, alipore jail,
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The Calcutta High Court has recently set aside an order acquitting an accused under Section 256 of the CrPC for a complaint registered under Section 138 of the Negotiable Instrument Act by observing that a Magistrate cannot pass such an order merely due to the non-appearance of the complainant without forming a judicial opinion.

Section 256 mandates that if the complainant does not remain present on the appointed day after the summons has been issued on the complaint and unless attendance of complainant has been dispensed with, the Magistrate shall acquit the accused. The provision further stated that if the Magistrate feels that the order of acquittal should not be passed on that date, the Magistrate has to give reasons.

Justice Bibek Chaudhuri observed,

"..acquittal of the accused on the absence of the complainant under Section 256(1) of the Code of Criminal Procedure is not automatic. The court must apply its judicial discretion to the facts and circumstances of the case where it is expedient for the court to acquit the accused under Section 256(1) of the Code."

In the instant case, on the date of recording of evidence the complainant was present and the accused was represented under Section 205 of the CrPC but the concerned Magistrate suo moto adjourned the hearing of the case fixing March 13, 2018, for evidence. On March 13, 2018, the complainant was absent without any step and the Magistrate accordingly directed him to file show cause as to why the case shall not be dismissed for non-prosecution and further fixed April 10, 2018 for filing show cause by the complainant.

On April 10, 2018, the complainant was again absent without any step and thereafter the concerned Magistrate acquitted the accused under Section 256 of the CrPC. The instant appeal was filed by the complainant against this order of acquittal.

The Court observed that the concerned Magistrate had passed the order of dismissal of the case without forming any opinion that there is no good reason to adjourn the hearing of the case to some other date. Opining that the impugned order does not contain any judicial discretion, the Court underscored,

"The learned Magistrate has also not recorded any finding justifying dismissal of the case. The case was dismissed because the complainant failed to submit any application showing cause of his absence on the previous date. Absence of judicial discretion is apparent on the face of record. Because the learned Magistrate did not assign any reason in support of the requirement that it is not proper to adjourn the hearing of the case to some other date."

Accordingly, the impugned order of acquittal was set aside.

Case Title: M/s One Textile v. Umesh Bharech

Case Citation: 2022 LiveLaw (Cal) 209

Click Here To Read/Download Order


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