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2022 (5) TMI 1111

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..... ented under Section 205 of the Code and he was physically absent. The learned Magistrate passed the order of dismissal of the case without forming any opinion that there is no good reason to adjourn the hearing of the case to some other date. The learned Magistrate has also not recorded any finding justifying dismissal of the case. The case was dismissed because the complainant failed to submit any application showing cause of his absence on the previous date. Absence of judicial discretion is apparent on the face of record. Because the learned Magistrate did not assign any reason in support of the requirement that it is not proper to adjourn the hearing of the case to some other date. This Court is of the considered opinion that the imp .....

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..... why the case shall not be dismissed for non-prosecution fixing 10th April, 2018 for filing show cause by the complainant. On 10th April, 2018 the complainant was again absent without any step. Therefore, the learned Metropolitan Magistrate, 3rd Court, Kolkata acquitted the accused under Section 256 of the Code of Criminal Procedure. The instant appeal is filed by the complainant of the aforesaid case assailing the order of acquittal passed in favour of the respondent by the court below on 10th April, 2018. 2. Learned Advocate for the appellant submits at the outset that in a summons case, the court can pass an order of acquittal under Section 256 of the Code due to non appearance of the complainant. However, the said order is not automa .....

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..... ew of the above, the accused person(s) is/are acquitted under Section 256 of the Code of Criminal Procedure. The accused person(s) be discharged from his/her/their respective bail bond(s) and be set at liberty at once. Recall process, if any. Note in T.R. 3. According to the learned Advocate for the appellant the learned Magistrate did not exercise his judicial discretion and mechanically passed the order. It is true that on 13th March, 2018 and 10th April, 2018, the complainant was absent but he failed to consider that the complainant was present to adduce evidence on 27th November, 2013, 19th November, 2014, 3rd June, 2014, 1st August, 2014, 1st December, 2014, 19th November, 2015, 22nd September, 2015, 22nd December, .....

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..... ial 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. 5. In S. Rama Krishna vs. S. Rami Reddy (D) By His Lrs. Ors reported in 2008 (5) SCC 535, the Hon ble Supreme Court lays down the following grounds when an order of acquittal may be recorded in favour of the accused. The ground are:- (i) That summons must have been issued on the complainant. (ii) The Magistrate should be of the opinion that for some reasons, it is not proper to adjourn the hearing of the case to some other date. (iii) The date on which the order under Section 256(1) can be passed is the day appointed for appearance for the accused or any day sub .....

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..... not suffer from any illegality, the appellate court should not interfere with the order passed by the trial court. In support of his contention the learned Advocate for the respondent refers to a decision of the Hon ble Supreme Court in Ramesh Babulal Doshi vs. State of Gujarat reported in (1996) 9 SCC 225. He also refers to another decision of the High Court of Allahabad in the case of Saurabh Kumar Gupta vs. State of U.P Anr. reported in (2017) SCC OnLine ALL 1236. 7. Having heard the learned Counsels for the parties and on careful perusal of the reported decisions cited by the learned Counsels for the appellant and the respondents, it is ascertained that acquittal of the accused on the absence of the complainant under Sectio .....

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