Case Note & Summary
The appellant, Nusli Wadia, filed a criminal complaint against respondents for offences under Sections 500, 501, 34, and 109 IPC. The Metropolitan Magistrate, 23rd Court, Esplanade, Mumbai, acquitted the respondents under Section 256 CrPC on 10th February 2000 due to the complainant's non-appearance. The complainant, after obtaining special leave, filed an appeal before the Bombay High Court challenging the acquittal. The appeal was initially dismissed for non-appearance of the appellant's counsel, but the order was recalled as it had not been signed or transcribed. Upon rehearing, the High Court examined the Magistrate's order. The court noted that the Magistrate had not recorded any finding that the complainant's absence was without sufficient cause, which is a prerequisite under Section 256 CrPC. The High Court held that the Magistrate's order was unsustainable and set aside the acquittal, remanding the matter for fresh consideration. The court directed the Magistrate to restore the complaint to its original number and proceed in accordance with law, after giving an opportunity to the complainant to show cause for his absence.
Headnote
A) Criminal Procedure Code - Acquittal under Section 256 CrPC - Non-appearance of complainant - The Magistrate acquitted the accused under Section 256 CrPC without recording satisfaction that the complainant's absence was without sufficient cause. The High Court held that such an order cannot be sustained as the Magistrate must consider whether there was sufficient cause for non-appearance before dismissing the complaint. (Paras 1-9) B) Criminal Procedure Code - Recall of order - Order pronounced but not signed or transcribed - The High Court recalled its earlier order dismissing the appeal in the absence of the appellant's counsel, as the order had not been signed or transcribed, and in the interest of justice, the matter was reheard. (Paras 2-4)
Issue of Consideration
Whether the Magistrate was justified in acquitting the accused under Section 256 CrPC without considering whether the complainant's absence was due to sufficient cause, and whether the order of acquittal can be set aside in appeal.
Final Decision
The appeal is allowed. The order of acquittal dated 10th February 2000 passed by the Metropolitan Magistrate, 23rd Court, Esplanade, Mumbai, is set aside. The complaint is restored to its original number. The Magistrate is directed to proceed with the complaint in accordance with law, after giving an opportunity to the complainant to show cause for his absence.
Law Points
- Section 256 CrPC
- acquittal for non-appearance
- sufficient cause
- opportunity of hearing
- recall of order
