2017 (6) TMI 1322 - HC - Indian Laws

Service of Summons - appellant assailed the impugned order with contention that order is not sustainable in law for the sole reason that powers under section 256 of the Code of Criminal Procedure could not have been exercised by the learned Magistrate as the summons was not served upon the accused - HELD THAT - On the face of record the impugned order is not sustainable in law for the sole reason that stage has not reached to exercise power under section 256 of the Code of Criminal Procedure to dismiss the complaint and acquit the accused. The order of the dismissal of the complaint and acquittal of accused u/sec. 256 of the Cr.P.C can be passed only after the process was issued and the accused had appeared in the matter but the complainant failed to appear on the date listed for hearing of the case. In the instant case respondent/accused has not served nor appeared before the Court. So also the case was not listed for hearing. The case was lying at the stage of the service of the summons. In default of taking steps at the most the complaint could have been dismissed by exercising the powers under section 204(4) of the Code of Criminal Procedure not in exercise of powers under section 256 of the Code of Criminal Procedure. Therefore, the impugned orders is not sustainable in law. Since the impugned order could not have been passed in exercise of the powers under section 256 of the Code of Criminal Procedure the order deserves to be set-aside. The case is restored to its original number. II. The case is remanded to the trial court. The appellant is directed to appear before the trial court on 1 st day of August, 2017.

Summary

Issues:
Challenge to impugned order of dismissal and acquittal under section 256 of the Code of Criminal Procedure.

Analysis:
The appellant challenged the order dated 15.12.2015, where the complaint was dismissed, and the accused acquitted due to failure to serve the accused under section 256 of the Code of Criminal Procedure. The appellant contended that necessary steps were taken to serve the respondent/accused, but he deliberately avoided accepting the service. The complaint was filed under section 138 of the Negotiable Instrument Act, and the process was initiated against the accused. However, the notice sent through Reg. Post. A.D was refused by the person at the address, leading to the complaint's dismissal.

The impugned order was found unsustainable as the stage had not reached to exercise power under section 256 of the Code of Criminal Procedure. The order of dismissal and acquittal under section 256 can only be passed after the accused has appeared in the matter, which did not happen in this case. The case was at the stage of serving the summons, and in default, the complaint could have been dismissed under section 204(4) but not under section 256. Thus, the impugned order was set aside, and the case was remanded to the trial court for further proceedings.

The High Court allowed the criminal appeal, setting aside the impugned order of dismissal and acquittal. The case was restored to its original number, and the trial court was directed to proceed further if the appellant appeared and took necessary steps. If the appellant failed to appear, appropriate orders were to be passed by the trial court. The record and proceedings were to be sent back to the trial court, and the appeal was disposed of accordingly.