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ROBIN PHUKAN
Gupta Hardware Private Limited – Appellant
Versus
R. B. Engineering and Company – Respondent
JUDGMENT :
ROBIN PHUKAN, J.
1. Heard Ms. P. Gupta, learned counsel appearing on behalf of Mr. C.S. Ray, learned counsel for the appellant, Mr. S.P. Roy, learned counsel for the respondent No. 1 and Mr. K.K. Parasar, learned Additional Public Prosecutor, Assam, appearing for the State respondent No. 2.
2. In this appeal, under Section 374(4) of the Code of Criminal Procedure, 1973, the appellant has put to challenge the order, dated 27.07.2010, passed by the learned Judicial Magistrate First Class, Kamrup(M), Guwahati, in complaint case, being C.R. No. 1882C/2007. It is to be noted here that vide impugned order, dated 27.07.2010, the learned Court below has dismissed the complaint for default and acquitted the accused/respondent No. 1.
3. The background facts, leading to filing of the present criminal appeal, are briefly stated as under:
The dismissal of a complaint due to non-prosecution must follow procedural requirements; failure to notify parties negates the dismissal under applicable legal standards.
The main legal point established in the judgment is that the dismissal of a complaint under Section 256 Cr.P.C. can only be made after it is taken on file and summons are issued to the accused. The c....
The dismissal of a complaint under Section 256 of CrPC is improper if the complainant's presence is not necessary for the proceeding, particularly when prosecution evidence has been led.
The absence of a complainant's advocate does not justify automatic dismissal of a case if evidence is on record and the accused is avoiding service.
Application which contain some assertion should be verified by person making statements for holding such person responsible regarding its genuineness – However, there is no provision which makes such....
The trial Court must consider the representation of the complainant by counsel before dismissing a case under Section 256 of the Cr.P.C.
A single absence of the complainant should not lead to dismissal of a complaint, as it may result in failure of justice.
The main legal point established is the discretion of the court to adjourn the hearing and the emphasis on deciding cases on merits with a judicial approach rather than dismissing them for default.
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