A trial court should not dismiss a complaint and acquit the accused based on a singular default in appearance by the complainant; the power under Section 279 of BNSS (formerly Section 256 CrPC) must be exercised judicially and fairly to prevent a failure of justice.

Sandeep Sharma C, J. (Oral)

Cr.MP(M) No.2511 of 2025

For the reasons stated in the application, which is duly supgported by way of affidavit, this Court is convinced and satisfied that delay in maintaining the accompanying criminal appeal is neither intentional nor willful, rather same has occurred on account of circumstances which were completely beyond the control of the applicant and as such, delay in filing the appeal, which in my considered view, has sufficiently been explained, is condoned. The application stands disposed of.

Cr.MP(M) No.314 of 2026

2. Heard. Leave to appeal is granted. Application stands disposed of. .

3. Criminal Appeal be registered.

Cr. Appeal No.5 of 2026

4. Being aggrieved and dissatisfieod with order dated 23.02.2024 passed by learned Additional Chief Judicial Magistrate, Nalagarh, District Solan, Himachal Pradesh, whereby case No.97 of 2021, titled Dilu Sav Vs. Surjeet Bhatti, came to beu dismissed in default, appellant-complainant has approached this Coourt in the instant proceedings filed under Section 419 of the BNSS, 2023, praying therein to set aside the aforesaid order and restore the complaint filed under Sections 323 and 326 of the IPC.

5. hLearned Legal Aid Counsel representing the appellant fairly states that on account of some unavoidable circumstances, appellant/complainant was unable to come present on the date of passing of the impugned order and he was under impression that his counsel will come present and seek further time, however, Court below, taking note of his absence as well as his counsel, dismissed the complaint for want of prosecution.

6. To the contrary, Mr. Jagan Nath, learned Legal Aid Counsel for the respondent-accused, supported the impugned order. He submitted that since complainant had not come present to pursue his complaint, no illegality can be said to have been committed by the Court below, while passing impugned order. He submitted that in crim.inal proceedings complainant and accused, unless exempted, are always under obligation to put in appearance on each and every date.

7. Having heard learned counseol for the parties and perused material adduced on record, this Court finds that on 23.02.2024, case was listed for appearance of complainant. No doubt, perusal of the zimni order placed on record reveals thaut on 23.02.2024, matter was adjourned thrice, enabling complainant oor his counsel to come present, but certainly trial Court ought not have straightway proceeded to dismiss the complaint in default, rather in such a situation, Court could either issue fresh notice to the comhplainant or its counsel, specifically calling upon him to come present or his counsel, or could have adjourned the matter.

8. At this stage, it would be apt to take note of Section 279 of the Bharatiya Nagarik Suraksha Sanhita, 2023, which reads as under:-

“279. 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, after giving thirty days' time to the complainant to be present, 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