The duty of the Magistrate to apply judicial discretion and record findings justifying dismissal of the case under Section 256 of Cr.P.C. when the complainant is absent.

JUDGMENT :

Shampa Dutt (Paul), J.

1. This appeal has been preferred against a Judgment and Order dated 30th August, 2018 passed by Learned Metropolitan Magistrate, 16th Court, Calcutta in T.R. Case No. 8148/17 arising out of Complaint Case No. CS/65095/17 under Section 138 of the Negotiable Instruments Act, 1881, thereby acquitting the Accused Person under Section 256(1) of the Code of Criminal Procedure, 1973 from all the charges leveled against him under Section 138 of the Negotiable Instrument Act, 1881.

2. Mr. Satadru Lahiri was heard at length on behalf of the appellant.

3. By the order under appeal dated 30.08.2018, the Trial Court held as follows:-

“CS 65095 of 2017

Order dated 30.08.2018

Ld. Advocate for the complainant has filed absent petition on behalf of the complainant.

Complainant is absent on call till 11.45 A.M.

Accused is Rajesh Ram is present with his Ld. Advocate. The accused person submitted that the complainant company has already repossessed the vehicle in question long back and they are not interested to proceed with the matter.

In view of the above submission and that the complainant person is absent today on repeated call, I am of the opinion that the complainant appears not interested to proceed with the case. Complaint’s petition is rejected.

Therefore, it is ordered that C Case No. 65095 of 2017 be and same is dismissed and the accused person of the case is acquitted u/s 256 of Cr.P.C. He is also discharged from his bail bonds.

W/A/interim process, if any, stands recalled.

Note in T.R.

D/C by me.

Sd/-

Metropolitan Magistrate

16th Court, Calcutta”

4. Section 256 of the Cr.P.C. lays down:-

“Non appearance or death of the complainant – (1) if the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contend, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day.

Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case.

(2) the provisions of Sub-section (1) shall, so far as may be, apply also to cases where the non appearance of the complainant is due to his death.”

5. It has been held in several decision of this Court that while acquitting an accused under Section 256 of the Code of Criminal Procedure, the Court must apply its judicial discretion and record the findings justifying dismissal of the case. It has been held that the Magistrate cannot pass such an order merely due to non-appearance of the complainant without forming a judicial opinion.

6. Section 256 of the Code mandates that if the complainant does not remain present on the appointed date after the summons have been issued on the prayer of the complainant and unless attendance of the complainant has been dispensed with, the Magistrate shall acquit the accused. The provision further provides that if the Magistrate feels that the order of acquittal should not be passed on that date, the Magistrate has to give reasons.

7. As such it is on the Magistrate to give reasons if he feels that the order of acquittal should not be passed. If the complainant does not appear as provided, there is no provision for adjournment, which if allowed has to be, by giving reasons as to why order of acquittal should not be passed on that date in the absence of the complainant.

8. In Associated Cement Co. Ltd. vs Keshvanand, in Criminal Appeal No. 1239 of 1997, on 16 December, 1997, the purpose of inserting a provision like Section 256 of the Code was discussed and in light thereof, in paragraph 16, it was observed by the Supreme Court as under:-

“16. What was the purpose of including a provision li