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TMI Blog2018 (1) TMI 1640X X X X Extracts X X X X X X X X Extracts X X X X ..... some other day - In present case, the case was at advance stage of hearing, statement of respondent under Section 313 Cr.P.C. had been recorded and case was fixed for recording defence evidence. The complainant was duly represented by the counsel, but his counsel has also failed to put in appearance before the Magistrate for which complainant may not be held liable directly, rather, absence of the complainant, as he has engaged a counsel to represent him, may be considered as justified under the bona fide belief that the counsel may attend his complaint in his absence. For recording statements in defence, presence of complainant was not necessary. The learned Magistrate was not justified in dismissing the complaint in default for single absence of the complainant coupled with failure of his counsel to attend the date. From the stage of complaint, it is evident that presence of complainant, on that day, was unnecessary as the case was at final stage. The Magistrate instead of dismissing the complaint in default should have adjudicated upon the complaint on merit and for that purpose, he might have adjourned the case for a future date - In the impugned order, there is no finding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e or death of complainant. - (1) If the summons has been issued on complaint, and 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, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day: Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case. (2) The provisions of sub-section (1) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death. 6. Section 256 Cr.P.C. provides discretion to the Magistrate either to acquit the accused or to adjourn the case for some other day, if he thinks it proper. Proviso to this Section also empowers the Magistrate to dispense with the complainant from his personal attendance if it is found not necessary and to proceed with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase as the witnesses on behalf of the complainant have already been examined and it has been held that in such a situation, particularly, when the accused had been examined under Section 313 Cr.P.C., the Court was required to pass a judgment on merit in the matter. 11. This Court in N.K. Sharma's case (supra) also, relying upon in Associated Cement Co. Ltd.'s case (supra), has held that when the Court notices that complainant is absent on a particular day, the Court must consider whether the personal attendance of the complainant is essential on that day for the progress of the case and also whether the situation does not justify the case being adjourned to another date due to any other reason and if the situation does not justify the case being adjourned, then only Court is free to dismiss the complaint and acquit the accused, but if the presence of complainant on that day was quite unnecessary then resorting to the step of axing down the complaint may not be a proper exercise of power envisaged under Section 256 Cr.P.C. 12. This Court in another case titled as Boby versus Vineet Kumar, reported in Latest HLJ 2009 (HP) 723, has reiterated ratio of law laid down in N. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e evidence. The complainant was duly represented by the counsel, but his counsel has also failed to put in appearance before the Magistrate for which complainant may not be held liable directly, rather, absence of the complainant, as he has engaged a counsel to represent him, may be considered as justified under the bona fide belief that the counsel may attend his complaint in his absence. For recording statements in defence, presence of complainant was not necessary. Even, cross-examination on his behalf would have been conducted by the counsel appointed by him, but, the effect of absence of counsel for the complainant would have been that cross-examination of witnesses could not have been done, but so far as recording of evidence is concerned, the Court might have proceeded further in recording the evidence in defence. 19. The facts of present case are identical to the facts involved in S. Anand's case (supra). 20. In view of the ratio of law laid down by the apex Court and other judgments of the High Courts, including this Court, I am of the opinion that the learned Magistrate was not justified in dismissing the complaint in default for single absence of the complainan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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