Section 256 Cr.PC - Whether Magistrate can dismiss criminal complaints because of non-appearance of complainant?

The question which arose in the present case for consideration that whether the learned Magistrate was justified in dismissing the criminal complaints for appearance of the complainant even though the statement of the complainant has been recorded?

The appellant in the present case filed eights complaints from 2011 to 2017 against the respondents under Section 138 of the Negotiable Instruments Act, 1881. The complainant was subjected to cross examination only on three complaints out of eight complaints. The complainant’s evidence was closed and recording of defence evidence was directed by the learned Magistrate. The complainant filed an application under Section 311 of the Cr.PC for summoning of witnesses at the stage of recording of defence evidence. However the complainant did not appear at that stage. In the circumstances, the complaints were dismissed for non-appearance.

Therefore the order of dismissing complaints was challenged in the High Court of Delhi by eight separate petitions. The High Court too dismissed the petition by impugned common order. So being aggrieved by such order, the appellant filed eight separate appeals in the Hon’ble Supreme Court which came up for consideration that whether the courts below were justified in dismissing complaints on the ground on non-appearance of complainant.

The Learned Counsel for the appellant submitted –

1. The Learned Magistrate while dismissing the complaints for non-prosecution lost sight of the proviso of sub-section (1) of Section 256 of the Code. The said proviso enables the Magistrate to dispense with the attendance of the complainant and proceed with the case where the complainant is represented by a pleader of by the officer conducting the prosecution or where the Magistrate is of the opinion that the personal attendance of the complainant is not necessary.

2. The statement of the complainant had been recorded and the complainant was also subjected to cross-examination. In these circumstances, even if the complainant was absent, the Learned Magistrate could have proceeded to decide the case on merits. Thus, the order of the learned Magistrate stands vitiated for having failed to notice that there existed evidence on record enabling the matter to proceed even in absence of the complainant under the proviso to sub-section (1) of Section 256 of the Code.

3. The High Court failed to notice the aforesaid aspect.

4. The Order of the High Court as well as Learned Magistrate are liable to be set-aside and the matter be restored to the stage at which the learned magistrate had dismissed the complaint.

The learned counsel, in support of his submissions, relied on the decision of the cases namely Associated Cement Co. Ltd. vs Keshavanand (1998) 1 SCC 687, and S. Anand vs Vasumathi Chandrasekar (2008) 4 SCC 67

On the contrary, the learned counsel for respondents submitted –

I. Sub-Section (1) of Section 256 of the Code of Criminal Procedure mandates the Magistrate to acquit the accused if, on the day appointed for the appearance of the accused or any day subsequent thereto, to which the hearing may be adjourned, the complainant does not appear.

II. The Learned Magistrate was justified in dismissing the complaints for non-appearance of the complainant after filing an application under Section 311 of the Code.

III. The Learned Counsel urged, that if there is any technical defect in dismissing the complaints for non-appearance, the same be treated as an order of acquittal as per provisions of sub-section (1) of Section 256 of the Code.

Section 256 of the Code indicates that where the Magistrate is satisfied that the personal attendance of the complaint is not necessary, he can dispense with the attendance of the complainant and proceed with the case. Such a situation may arise where complainant’s/prosecution’s evidence has been recorded and to decide the case on merits, complainant’s presence is not necessary

The Hon’ble Supreme Court too referred to the case relied by learned counsel for appellant.

A situation where the complainant was absent but had already examined his witness was addressed in case of S.Anand’s. The Court observed as follows:

“12. Section 256 of the Code provides for disposal of a complaint in default. It entails in acquittal. But, the question which arises for consideration is as to whether the said provision could have been resorted to in the facts of the case as the witnesses on behalf of the complainant have already been examined.

13. The date was fixed for examining the defence witnesses. The appellant could have examined witnesses, if he wanted to do the same. In that case, the appearance of the complainant was not necessary. It was for her to cross-examine the witnesses examined on behalf of the defence.”

In Associated Cement Co. Ltd, the purpose of inserting a provision like Section 256 of the Code was discussed. It was observed that the purpose of Section 256 of Cr.PC is to afford protection to an accused against dilatory tactics by a complainant who set the law in motion through his complaint. An accused, who is forced to attend the Court on all posting day can be put to harassment by a complainant, if a complainant does not turn up when his presence is necessary. But that does not mean that the Court has a duty to acquit the accused in invitum.

In the instant case, the Supreme Court observed and found that neither the High Court nor the Learned Magistrate has take notice of the position in the afore mentioned case.

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.

Further, if the complainant had not appeared to press application under Section 311 of the Code, the learned magistrate could have rejected the application under Section 311 of the Code and proceeded with the case on basis of the available evidence – Supreme Court said.

Therefore, the Hon’ble Supreme Court viewed that the Learned Magistrate was not justified in straight away dismissing the complaints and ordering acquittal of the accused on mere non-appearance of the complainants. Hence the impugned order was set aside. As a result, the proceedings was restored to their original numbers to proceed the prosecution from the stage where it was when the order of acquittal/dismissal was passed.

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