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IN THE HIGH COURT OF TRIPURA AT AGARTALA
BISWAJIT PALIT
Mamud Hossen Khadim S/o Suban Miah Khadim – Appellant
Versus
Uttam Sarkar S/o Rasaraj Chandra Sarkar – Respondent
JUDGMENT :
BISWAJIT PALIT, J.
1. This appeal is preferred challenging the order dated 05.07.2024 delivered by Learned J.M. 1st 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
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.
The dismissal of a complaint under Section 256 for non-appearance is improper if evidence is recorded, emphasizing the need for trial on merits to avoid undue acquittal.
Straightway dismissal of Section 138 complaint on single non-appearance unjustified; courts must exercise Section 256 Cr.P.C. discretion judicially, adjourning or dispensing attendance to ensure just....
The main legal point established in the judgment is the discretion of the magistrate to proceed with the case even in the absence of the complainant, as provided in Section 256 of the Code of Crimina....
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.
Magistrate is not justified in straight away dismissing complaint(s) and ordering acquittal of accused on mere non-appearance of complainant.
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 trial court must provide reasons for dismissing a complaint due to the complainant's absence, exercising discretion under Section 256 of the Cr.P.C. to avoid unjust hardship to the accused.
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