Rajasthan High Court: In an criminal appeal challenging the order of dismissal of the criminal complaint for non-appearance of the complainant especially considering the continuous efforts of the complainant in prosecuting the accused respondents, a single-judge bench comprising of Anoop Kumar Dhand, J., allowed the appeal, quashed the impugned order, and directed the proceedings to continue from the stage they were in before the dismissal of the complaint.
In the instant matter, the appellant filed a criminal appeal under Section 378(4) of the Criminal Procedure Code, 1973 (CrPC) challenging the order dated 05-04-2022, passed by the Special Metropolitan Magistrate (NI Act) Cases, dismissing the appellant’s complaint under Section 138 of the Negotiable Instruments Act, 1881 (NI Act) for want of prosecution under Section 256 of the CrPC and acquitted the respondents. The appellant argued that his absence was bona fide and requested the recall of the order and restoration of the complaint. However, the respondents opposed the appellant’s arguments, stating that the complainant had failed to appear before the trial court on previous occasions.
The Court emphasised that the power of the Magistrate under Section 256 of the CrPC should be exercised judicially and not in a hasty or thoughtless manner. The Court stated that “the power is not to be indiscriminately exercised whimsically and mechanically for the statistical purposes of removing a docket from its rack as it undermines the cause of justice. Instead, the judicious course would be to direct the complainant to appear for the hearing, if it is imperative, and decide whether the drastic step of acquittal is to be passed in case he fails to appear.”
The Court observed that the complainant had been diligent in prosecuting the accused, as evidenced by their regular appearances in Court. Furthermore, the Court noted that the complainant’s absence on the crucial date was due to lack of knowledge about the transfer of the case to a new Court. The Court found it unreasonable for the trial court to dismiss the complaint without providing a fair opportunity to the complainant. The Court noted that the impulsive decision of the Magistrate to dismiss the complaint without providing a fair opportunity to the complainant led to a miscarriage of justice. The Court held that the dismissal of the complaint and the consequent acquittal of the respondents were unjustified.
The Court quashed and set aside the impugned order dated 05-04-2022, restored the proceedings to their original status, and directed the trial court was directed to proceed with the matter in accordance with the law.
[K.K. Construction v. Bhagwan Singh Poswal, 2024 SCC OnLine Raj 1012, order dated 18-04-2024]
Advocates who appeared in this case :
Mr. Nishant Sharma, Counsel for the Appellant
Mr. JR Tantia, Counsel for the Respondents
Buy Code of Criminal Procedure, 1973 HERE
