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J. J. MUNIR
Shitala Baksh Singh – Appellant
Versus
State of U. P. through Secretary (Home) – Respondent
JUDGMENT :
Heard Mr. Narendra Kumar Singh, learned Counsel for the applicant, Ms. Fatima Anjum, Advocate holding brief of Mr. Syed Ahmed Faizan and Mr. D.K. Srivastava, learned A.G.A. for the State.
2. This application under Section 482 of the Code of Criminal Procedure, 1973 (‘Code' for short) is directed against an order of the Judicial Magistrate, Court No. 5, Farrukhabad dated 10.11.2022 passed in Complaint Case No 59 of 2022, under Section 138 of the Negotiable Instruments Act, 1881, dismissing the complaint under Section 256 of the Code.
3. A preliminary objection has been raised by Ms. Fatima Anjum that this application under Section 482 of the Code is not maintainable, because the impugned order has been passed by the Magistrate under Section 256 of the Code, which amounts to a judgment of acquittal, the remedy whereagainst is an appeal under Section 378(4) of the Code by special leave of this Court. She submits, therefore, that this application under Section 482 of the Code is not maintainable.
4. Shorn of unnecessary detail, the facts giving rise to this application under Section 482 of the Code are that the applicant instituted a complaint in the Court of the Chief Judicial
A dismissal of a complaint for non-prosecution under Section 256(1) of the CrPC constitutes an acquittal, and the remedy lies in appealing under Section 378(4), rather than invoking Section 482.
Acquittal under Section 256 CrPC requires the presence of the complainant; absent this and with no evidence against the accused, dismissal cannot transition to acquittal.
Dismissal of a complaint for non-prosecution under Section 256(1) of the CrPC amounts to acquittal, allowing only an appeal and barring revision.
The court established that acquittal under Section 256 requires careful judicial consideration, particularly regarding the complainant's absence and the necessity of their presence for a fair trial.
The complainant's right to appeal against acquittal lies under Section 378(4) Cr.P.C. only before the High Court with special leave. The Sessions Court does not have the jurisdiction to entertain an ....
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....
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