A criminal complaint should not be dismissed straightway on a single default of appearance by the complainant; the Magistrate must exercise discretion judicially, considering whether personal attendance was essential or if the matter could be adjourned to ensure the administration of justice.

Whether approved for reporting?

Sandeep Sharmao, J. (Oral)

Being aggrieved and dissatisfied with order dated 08.04.2025 passed by learned Additional Chief Judicial Magistrate, Court No.2, District Shihmla, Himachal Pradesh, whereby criminal complaint No.1351/2023, gtitled Smt. Anita Kanwer Vs. Janki Dass Joshi, came to be dismissed in default, appellant-complainant has approached this Court 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 Section 138 of the Negotiable Instruments Act.

2. Learned 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 her counsel will come present and seek further time, however, Court below, taking note of his absence as well as her counsel, dismissed the complaint for non-app.earance and non-prosecution.

3. To the contrary, Mr. M.C. Bhardwaj, learned counsel for the respondent-accused, supported the oimpugned order. He submitted that since complainant had not come present to pursue her complaint, no illegality can be said to have been committed by the Court below, while passing impugned orduer. He submitted that in criminal proceedings complainant and oaccused, unless exempted, are always under obligation to put in appearance on each and every date.

4. Having heard learned counsel for the parties and perused mahterial adduced on record, this Court finds that on 08.04.2025, case was listed for the appearance of complainant. No doubt, perusal of the zimni order placed on record reveals that on 08.04.2025, matter was repeatedly called throughout the day, enabling complainant or her 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 complainant or her counsel, specifically calling upon her to come present or her counsel, or could have adjourned the matter.

5. 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 htearing of the case to some other day:Provided that where the comrplainant is represented by an advocate or by the officer conducuting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistorate 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.”

6. Aforesaid provision of law gives a discretion to the Magistrate either to acquit the accused or to adjourn the case for some other day, if ihe/she thinks it proper. Proviso to aforesaid Section further empowers the Magistrate to exempt the complainant from his personal attendance, if it is found not necessary and to proceed with the case. If the complainant is represented by a pleader or by the officer conducting the prosecution, the Magistrate may proceed with the case in absence of the complainant. When the Magistrate, in a summons case, dismisses the complaint and acquits the accused due to absence of the complainant on the date of hearing, it becomes final and it cannot be restored in view of Section 403 of the Bharatiy