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2023 (7) TMI 759 - HC - Indian LawsDismissal of complaint for non-prosecution / non appearance before the court - Exercise of discretion by Trial Court under the provisions of Section 256 of the Code of Criminal Procedure - complainant has not remained present on two dates at the stage of recording the evidence - HELD THAT - The learned Magistrate cannot simply say that the steps are not taken since long. Now, whether two day s absence is sufficient for dismissal?. There is no straitjacket formula. It depends upon the facts. In particular case even six dates or more than that can be presumed to be sufficient for not dismissing the complaint. It is pure question of fact. Learned Advocate Mr. Dave (respondent) is right that now-a-days you can see roznama online. He is right that the accused is not required to attend the Court and to reproduce record. However, two days absence cannot be said to be justifiable ground for dismissing the complaint. It is not job of the Court to see that the matters are dismissed just because either of party is not remaining present. The job of the Court is to see that justice is done by giving sufficient opportunities to the parties. Always there is rule of audi alteram partem. In this case, it is felt that the learned Magistrate has hastily dismissed the complaint. In fact, one option was available to learned Magistrate that is to say, while adjourning the matter he could have regulated conduct of the complainant, even by passing certain strict orders, that is to say, even by imposing cost. Learned Magistrate has simply considered absence of complainant only on two dates and dismissed the complaint. The Respondent is justified in opposing the Appeal, on the basis of facts and circumstances. When the rights of both parties are balanced, the matter needs to be restored. Leave to prefer an Appeal is granted - Matter restored back.
Issues Involved:
1. Justification of the Trial Court's discretion under Section 256 of the Code of Criminal Procedure. 2. The necessity of the complainant's presence and the impact of their absence on the case. 3. The balance of justice between the complainant and the accused. Summary: 1. Justification of the Trial Court's discretion under Section 256 of the Code of Criminal Procedure: The core issue in this appeal is whether the Trial Court was justified in exercising its discretion under Section 256 of the Code of Criminal Procedure when the complainant was absent on two dates during the evidence recording stage. The Metropolitan Magistrate dismissed the complaint on 17th September 2022 due to the complainant's non-appearance, invoking Section 256. The complainant sought leave to appeal this decision. 2. The necessity of the complainant's presence and the impact of their absence on the case: The complainant's advocate argued that the absence on 11th July 2022 was due to a mistaken date entry and that the absence on 17th September 2022 did not constitute persistent absence. The respondent's advocate contended that the complainant's absence was unjustified, especially given the urgency of cases under Section 138 of the N.I. Act, which should be disposed of within six months. The respondent pointed out that the complainant had ample time from 6th December 2021 to 17th September 2022 to file an affidavit of examination in chief but failed to do so. 3. The balance of justice between the complainant and the accused: The court considered the facts and circumstances, emphasizing that the complainant's absence on only two dates did not justify the dismissal of the complaint. The court noted that the Magistrate could have regulated the complainant's conduct by imposing costs rather than dismissing the complaint outright. The court found that the Magistrate's decision was hasty and that justice required the restoration of the complaint, balanced by compensating the accused with costs. Order: - Leave to prefer an appeal was granted. - The appeal was admitted and allowed. - The order dismissing the complaint was set aside, subject to the complainant paying Rs. 5,000 to the accused. - The parties were directed to appear before the Metropolitan Magistrate on 1st August 2023. - The complainant was instructed to file an affidavit of examination in chief without further delay. The appeal was disposed of with these terms, restoring the complaint to the stage of filing the affidavit.
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