Case Note & Summary
The appellant, Mathurabai w/o Gopal Dhawale, filed a private complaint (R.C.C. No.356 of 1997) against Ambadas s/o Punda Kadam and Anant Ambadas Kadam (respondents 2 and 3) alleging that on 24.5.1997 at about 11.30 p.m., the accused committed offences under Sections 452, 323, 504, 506 read with 34 of the Indian Penal Code. The 4th Judicial Magistrate, First Class, Latur, acquitted the accused on 5.12.1997 under Section 256 of the Code of Criminal Procedure, 1973, due to the non-appearance of the complainant. The complainant appealed to the Bombay High Court. The High Court observed that the Magistrate passed the order mechanically without applying judicial mind. The order did not record any reasons for acquittal and did not consider that the complainant's advocate was present. The court held that the Magistrate failed to exercise discretion judicially. The appeal was allowed, the impugned order was set aside, and the complaint was restored to the file of the Magistrate for fresh disposal in accordance with law. The parties were directed to appear before the Magistrate on 15.2.2010.
Headnote
A) Criminal Procedure - Acquittal under Section 256 CrPC - Duty of Magistrate - The Magistrate must apply judicial mind and record reasons before acquitting an accused under Section 256 CrPC for non-appearance of complainant, especially when the complainant's advocate is present. The order of acquittal was set aside as it was passed mechanically without considering the presence of the advocate. (Paras 1-5) B) Criminal Procedure - Restoration of Complaint - Section 378 CrPC - Appeal against acquittal - The High Court, in exercise of appellate powers, can set aside an illegal order of acquittal and restore the complaint to the file of the Magistrate for fresh disposal. The appeal was allowed and the complaint was restored. (Paras 5-6)
Issue of Consideration
Whether the Magistrate was justified in acquitting the accused under Section 256 of the Code of Criminal Procedure, 1973, without recording reasons and without considering the presence of the complainant's advocate.
Final Decision
The appeal is allowed. The impugned order dated 5.12.1997 passed by the 4th Judicial Magistrate, First Class, Latur, in R.C.C. No.356 of 1997 is set aside. The complaint is restored to the file of the Magistrate for fresh disposal in accordance with law. The parties are directed to appear before the Magistrate on 15.2.2010.
Law Points
- Section 256 CrPC
- acquittal for non-appearance
- judicial discretion
- duty of Magistrate
- private complaint
- restoration of complaint
