IMPORTANT POINT
Non-appearance of complainant – If date is not appointed for appearance of accused but for some other purpose, acquittal of accused does not necessarily follow as logical result of absence of complainant.

JUDGMENT :

DIPANKAR DATTA, J.

1. Leave granted.

2. This appeal, inter alia, tasks us to interpret Section 256 of the Code of Criminal Procedure, 1973¹[Cr. PC].

3. The appellant’s son, holder of a degree of Doctor of Philosophy, died relatively young at the age of 36 years. Such unfortunate death was preceded by a traumatic fall that he had from a staircase on 10th July, 2014. The appellant had his son immediately admitted to a private hospital at Dum Dum, Kolkata. However, according to the appellant, it was due to the criminal medical negligence of the hospital and the doctors attending on his son that he could not survive the hemorrhage caused by such fall.

4. Apart from proceedings initiated elsewhere, the appellant lodged a complaint under Section 200, Cr. PC before the 4th Court of Judicial Magistrate, Barrackpore, North 24 Parganas, Kolkata²[Complaint Case No.2/2017] alleging offence committed under Section 304-A, Indian penal Code, 1860³[IPC]. The Judicial Magistrate upon recording the statement of the appellant on oath, issued process under Section 204(1), Cr.PC against, inter alia, the respondents for alleged commission of offence under Section 304A, Indian Penal Code, 1860.

5. The respondents were arrayed as some of the accused in the complaint. Upon service of summons on them, the respondents approached the High Court at Calcutta⁴[High Court] by presenting an application under Section 482 of the Cr. PC⁵[CRR No. 2327 of 2018] seeking quashing of such summons. Upon hearing the petition, a learned Judge of the High Court stayed proceedings before the Judicial Magistrate vide order dated 18th September, 2018. Such order was extended from time to time.

6. In the third week of March, 2020, national lockdown was clamped owing to outbreak of COVID. The Standard Operating Procedure⁶[SoP] for functioning of courts in West Bengal during the pandemic, circulated vide notification dated 27th November, 2020 of the Registrar General of the High Court, inter alia, contained the following stipulation:

“12. Ordinarily, matters should not be dismissed for default, both in the High Court and in the Subordinate Courts, except upon giving cogent reasons recording the deliberate avoidance or recalcitrance of the party or parties absent. Similarly, extreme caution should be exercised before passing any ex parte order”.

7. Despite proceedings of the complaint having been stayed by the High Court and despite the subsistence of the SoP, duly notified, the Judicial Magistrate called the complaint case on 6th January, 2021. Despite repeated calls, the appellant had remained absent. He was not represented by his advocate either. Accordingly, the Judicial Magistrate required the appellant to show-cause why the complaint shall not be dismissed and, accordingly, fixed 16th April, 2021 for his response.

8. At the relevant time, the pandemic was still taking lives of old and young alike. The appellant, a septuagenarian, was attacked by the COVID virus and was under medical treatment owing to which he had not risked his life by appearing before the Judicial Magistrate. Thus, he was again found absent on 16th April, 2021. No steps having been taken by the appellant pursuant to the order dated 6th January, 2021, the Judicial Magistrate dismissed the complaint for default vide order dated 16th April, 2021.

9. CRR No. 2327 of 2018 was thereafter listed on 9th September, 2021 before another learned Judge of the High Court. The appellant, though impleaded as an opposite party therein, was once again not present. The learned Judge, seized of the same, noted that the complaint had been dismissed for default by the Judicial Magistrate vide order dated 16th April, 2021, yet, proceeded to pass the following order:

“ *** So far as the provision of Criminal Procedure Code is concerned, the only section which is applicable will be Section 256 of the Code of Criminal Procedure in cases where the complainant is absent and the learned Magistrate is not willing to proceed with the