Dismissal of a complaint for non-prosecution is improper when the case is pending for examination of the accused, especially after a bailable warrant is issued.

JUDGMENT :

BISWAJIT PALIT, J.

1. This appeal is preferred challenging the order dated 05.07.2024 delivered by Learned J.M. 1^st Class, Court No.3, Udaipur, Gomati Tripura in connection with case No.CR(NI) 54 of 2021. By the said order Learned Court below has dismissed the case for non-prosecution.

2. Heard Learned Counsel, Mr. Subham Majumder appearing for the appellant and also heard Learned P.P., Mr. R. Datta appearing on behalf of the State-respondent. None appeared on behalf of the private-respondent.

3. Taking part in the hearing, Learned Counsel for the appellant drawn the attention of the Court that the present appellant filed one case under Section 138 of N.I. Act which was pending for disposal before the Learned Court below. In the said case, the appellant as complainant produced two witnesses including the complainant himself and the case was posted for examination of the private- respondent-accused under Section 313 of Cr.P.C. On 11.05.2023 the respondent-accused was absent and sought adjournment and the case was adjourned and further date was fixed on 24.05.2023 for examination of accused under Section 313 of Cr.P.C. Again on 24.05.2023 the case was further adjourned fixing the date on 30.06.2023 for examination of the private-respondent under Section 313 of Cr.P.C. But on 30.06.2023 the private-respondent-accused was absent and the case was adjourned to 02.08.2023 for examination of respondent-accused under Section 313 of Cr.P.C. But on 02.08.2023 the respondent-accused again sought for time but the Learned Court below rejected the application for adjournment and issued bailable warrant of arrest against the said private-respondent. On 08.12.2023 the complainant submitted requisite for issuing bailable warrant of arrest against the respondent-accused and the case was fixed for ER/appearance on 24.01.2024. But as there was no execution report of the warrant, so, Learned Court below issued reminder to the Officer-in-charge of the concerned police station for execution of bailable warrant of arrest but the warrant was not executed and the case was fixed on 05.07.2024 for E/R and on that day the appellant was absent without any step and execution report of the bailable warrant was also not returned back from the concerned police station. But the Learned Court below by order dated 05.07.2024 dismissed the case for non- prosecution which was totally illegal and not warranted by law. So, Learned Counsel for the appellant submitted before the Court to set aside the said order and to remand back the matter to the Learned Court below for completion of trial of the case, otherwise, the appellant would be prejudiced.

He further drawn the attention of the Court referring the provision of Section 256 of Cr.P.C. which provides as under:

Section 256 of Cr.P.C.:-

256. Non-appearance or death of 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 contained, 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.

In addition to that he also referred another citation of Hon’ble Supreme Court of India in V.K. Bhat vs. G. Ravi Kishore & Anr. dated 29.02.2016 reported in (2016) 13 SCC 243 wherein in para No.10 Hon’ble the Apex Court observed as under:

“10. After hearing the learned counsel for the parties, we find that there is so