S.256 CrPC/S.279 BNSS | Absence Of Complainant Will Not Always Lead To Acquittal Of Accused : Supreme Court

The Supreme Court held that the non-appearance of a complainant will not always result in the acquittal of the accused as per Section 256 of the Code of Criminal Procedure (corresponding to Section 279 of the Bharatiya Nagarik Suraksha Sanhita).The Court interpreted Section 256 Cr.P.C. to mean that acquittal under this section is warranted only when the complainant is absent on the date which was set for the appearance of the accused. If the date was set for a purpose other than the appearance of the accused, the absence of the complainant on such a date will not warrant the acquittal of the accused. “What, therefore, assumes importance for invoking Section 256, Cr. PC is the purpose for which the case is fixed. If the date is not appointed for appearance of the accused but for some other purpose, like in the present case, acquittal of the accused does not necessarily follow as the logical result of absence of the complainant. Also, the words “on any day subsequent thereto” must be understood in reference to the words preceding, namely, “the day appointed for the appearance of the accused”. Say, for instance, if a date is fixed by the magistrate for bringing an order from a superior court or for showing cause why an order of dismissal should not be passed for continuous absence of the complainant or for producing any material, which is not intrinsically connected with any step towards progress of the lis, and the complainant is found to be absent, a dismissal of the complaint can be ordered but the provision for acquitting the accused may not be attracted unless it happens to be the date appointed for appearance of the accused and they do appear personally or through an advocate; also, without the magistrate recording a clear acquittal along with the order of dismissal of the complaint, acquittal need not be read into every such order of dismissal of a complaint owing to absence of the complainant.”, the Court observed. The bench comprising Justice Dipankar Datta and Justice Manmohan heard the case where the Appellant-Complainant was aggrieved by the Calcutta High Court's decision passed under revision jurisdiction to acquit the Respondent-accused just because the Appellant, a septuagenarian, failed to show its presence due to COVID-19 restrictions and himself suffering from COVID. In this case, the trial court dismissed the complainant for want of Appellant's failure to show his presence. The trial court dismissed the complainant despite the Standard Operating Procedure (SOP) circulated by the High Court, which was in force mandating no dismissal of the case for default because of the COVID-19 outbreak. Setting aside the High Court's decision, the judgment authored by Justice Datta observed that the High Court erroneously held that every dismissal under Section 256 mandates acquittal, ignoring the purpose of the hearing date. In this case, the date set was for the Appellant-complainant to show cause for his earlier absence, not for the accused's appearance. Hence, dismissal of the complaint did not warrant an acquittal unless the Respondents were present. “From the tenor of the order dated 6th January, 2021, it is clear that 16th April, 2021 was not the day appointed for appearance of the respondents. It was the date on which the appellant was required to show cause. Had COVID restrictions not been in place and in otherwise normal circumstances, if the appellant remained absent on the date appointed for appearance of the respondents, without showing sufficient cause, the Judicial Magistrate in terms of Section 256, Cr. PC would have been justified in recording an order of acquittal of the respondents had they been present unless, for some reason, he intended to adjourn the hearing to some other day. However, the jurisdictional facts for recording an acquittal under Section 256, Cr. PC were not satisfied in the present case, firstly, because it was not the appointed day for appearance of the respondents and secondly, they were also not present.”, the Court observed. Though procedurally, the trial court was right in dismissing the complaint, however upon noting that the COVID-19 SOP was in force (stating that no case be dismissed due to default), the Court said that the trial court exceeded its jurisdiction to dismiss the complaint. “Owing to the absence of the appellant and owing to his omission to respond to the show-cause, the Judicial Magistrate could, at best, be justified in dismissing the complaint for default, which he did but which he could not have done having regard to the facts of the notification dated 27th November, 2020 being in force on 16th April, 2021 and operation of the stay order granted by the High Court on 18th September, 2018, since extended from time to time.”, the court noted. In terms of the aforesaid, the Court partly allowed the appeal, reviving the complaint and restoring the criminal revision filed by the Appellant for fresh disposal. Case Title: RANJIT SARKAR VS....

S.256 CrPC/S.279 BNSS | Absence Of Complainant Will Not Always Lead To Acquittal Of Accused : Supreme Court

Yash Mittal

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