Case Note & Summary
The appellant, Dinesh Govindrao Mahalle, filed a criminal complaint (Case No. 3081 of 2007) against respondent no.2, Kishor Gopichandji Uike, before the Judicial Magistrate, First Class, Court No. 1, Amravati. On the date fixed for hearing, neither the appellant-complainant nor his counsel appeared, leading the Magistrate to dismiss the complaint and acquit the accused under Section 256 of the Code of Criminal Procedure, 1973 (Cr.P.C.). The appellant challenged this order before the Bombay High Court at Nagpur. The High Court observed that a copy of the roznama (daily proceedings record) was filed on record, which showed that the complainant and his counsel had been regularly attending the proceedings on earlier dates. The court relied on its earlier decision in India Fintrade Ltd v. Cherry Fashions Ltd & ors, 2009 All MR (Cri) 1657, which held that the power to dismiss a complaint under Section 256 Cr.P.C. cannot be exercised solely on account of the complainant's absence; the Magistrate must exercise discretion judicially after considering all circumstances. Since the Magistrate failed to consider the previous attendance record and mechanically dismissed the complaint, the High Court allowed the appeal, set aside the order of dismissal and acquittal, and restored the complaint to its original number. The court directed the Magistrate to proceed with the complaint in accordance with law.
Headnote
A) Criminal Procedure - Dismissal of Complaint - Section 256 Cr.P.C. - Power to dismiss complaint under Section 256 Cr.P.C. cannot be exercised only on account of absence of complainant; Magistrate must exercise discretion judicially after considering the circumstances, including the fact that complainant and his counsel were regularly attending proceedings earlier. Held that the order of dismissal was not justified and the appeal was allowed, setting aside the acquittal and restoring the complaint to its original number. (Paras 2-3)
Issue of Consideration
Whether the Magistrate was justified in dismissing the complaint and acquitting the accused under Section 256 Cr.P.C. solely on the ground of the complainant's absence on a single hearing date, without considering the previous attendance record.
Final Decision
The appeal is allowed. The impugned order of dismissal of complaint and acquittal of the accused is set aside. The complaint is restored to its original number. The Magistrate is directed to proceed with the complaint in accordance with law.
Law Points
- Section 256 Cr.P.C. dismissal requires judicial discretion
- not automatic on absence
- complainant's previous attendance record relevant
- power under Section 256 Cr.P.C. cannot be exercised only on account of absence of complainant
