IMPORTANT POINT
The court established that the exercise of power under Section 256 of the Code of Criminal Procedure must be judicious, taking into account the complainant's efforts and the context of the case, rather than being a mere procedural formality.

JUDGMENT/ORDER

1. Heard learned Advocate for the Appellant-complainant. No one is present on behalf of the Respondent-accused. Issue involved in this Appeal is as under :

"Whether power under Sec. 256 of the Code of Criminal Procedure can be exercised at post evidence stage when accused remained absent ?"

2. The appeal was already admitted on 5/12/2014. The action under Sec. 390 of the Code of Criminal Procedure was also initiated. The Farad Sheet dtd. 6/6/2023, mentions that Respondent No.1-accused has furnished surety of Rs.10, 000.00 on 30/6/2015. However, no one has appeared in this Appeal. It is travesty of justice, that appeal involving trifle issue remained pending for eight years. Reasons may be different.

3. Perused the impugned order dtd. 26/12/2012, passed by 15th Judicial Magistrate, First Class, Kolhapur in Summary Criminal Case No.4161 of 2006. The accused was acquitted for the offence punishable under Sec. 138 of the N.I. Act by taking recourse to Sec. 256 of the Code of Criminal Procedure. When this order came to be passed, the matter was fixed for recording statement of the accused under Sec. 313 of the Code of Criminal Procedure.

4. The complaint was filed in the year 2006 bearing SCC No.4161/06. Roznama indicates accused was in the habit of avoiding process of this Court. The following are the important dates :-

5. So from events what transpires is as follows :-

(a) The complaint is pending since 2006. (b) Accused has no respect for law. (c) He has not responded to Court summons earlier to plea and thereafter also. (d) Trial Court was required to issue non bailable warrant on various occasions.

(e) Prior to recording of plea, non bailable warrant was served and Respondent-accused was released on cash bail. (f) Non bailable warrant could not be served even through Superintendent of Police.

6. On this background, the Court of Judicial Magistrate, First Class, 15th Court, Kolhapur passed an order dtd. 26/12/2012 thereby acquitting the Respondent-accused by taking recourse to the provisions of Sec. 256 of the Code of Criminal Procedure. The learned Magistrate noted following facts in the order :-

(a) The complainant was absent persistently on 15/06/2012, 4/08/2012, 25/09/2012 and on 30/10/2012 (para 2). (b) Report of Superintendent of Police indicates that accused was outside his house (para 3). (c) Complainant has not taken steps under Sec. 82, 83 of the Code of Criminal Procedure (para 4).

7. Now the question is whether it was appropriate for the learned Magistrate to take recourse to the provisions of Sec. 256 of the Code of Criminal Procedure. If we read those provisions, we may find the following ingredients :-

(a) Case is fixed for hearing. (b) Complainant is absent. (c) His presence is required. (d) Court does not feel it necessary to adjourn the matter. Then only complaint can be dismissed.

8. The Hon'ble Supreme Court in case of Associated Cement Co. Ltd. Vs. Keshvanand, (1998) 1 SCC 687. has dealt with this issue. The purpose is to check the dilatory tactics of the complainant, principle of speedy trial is recognised.

9. However, if the entire facts and circumstances of the case are considered, there is reason to believe that the learned Magistrate has hastily passed that order. It is a matter of record that accused has no respect to the law. And on every occasion, the complainant was required to take steps. Execution of non bailable warrant is not an easy formality. At the same time, it is also true that unchallenged evidence could not have been used by the trial Court unless it was put to the accused under Sec. 313 of the Code of Criminal Procedure. At the same time, trial Court ought to have given weightage to the fact that patience of complainant was tested every time. If it is so, the trial Court waited and could have given direction to the complainant to take steps.

10. The judgment of acquittal need not be interfered rightly. But the power under Sec. 256 of the Code should not be exercised only for the pur