BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 07.01.2026 CORAM:

THE HONOURABLE MR.JUSTICE MOHAMMED SHAFFIQ CRL.R.C.(MD)No.931 of 2025 Maheshwaran D/o.Seenivasan ... Petitioner vs.

1. Dhanushkodi S/o.Jeganathan

2. Gowtham S/o.Jeganathan

3. Amutha S/o.Jeganathan

4. Nallammal S/o.Jeganathan ... Respondents PRAYER: Criminal Revision case is filed under Section 438 r/w 442 of BNSS, 2023, to call for the records relating to the case in C.C.No.347 of 2023 on the file of the Learned Judicial Magistrate No.2, Usilampatti, Madurai and set aside the same and direct the Magistrate to fix the date for hearing of the petitioner side evidence in the above case.

For Petitioner : Mr.Anandapadmanaban for M/s.APN Law Associates For Respondents : Mr.J.Selvam *****

O R D E R

Heard Mr.Anandapadmanaban, learned Counsel for petitioner and Mr.J.Selvam, learned Counsel for Respondent Nos.1 to 4.

2. The present Criminal revision case is filed challenging the order of Judicial Magistrate, Usilampatty in CC.No.347 of 2023, vide order dated 29.05.2025, whereby, the complaint was dismissed for default for non-prosecution. The relevant portion of the order is extracted here under:

''This petition has been filed under Section 190(1)(b), 200 of Cr.P.C.

Complainant present. All accused absent. Petition filed and allowed. Today posted for complainant side evidence as last chance. But complainant not ready. Already sufficient chance given for complainant side evidence. Hence, this complaint is dismissed for default for ''non-prosecution.''

3. It is submitted by the learned counsel for the petitioner that it is not in dispute that the impugned order was passed invoking Section 256 of Cr.P.C. It is the case of the petitioner that Section 256 of Cr.P.C. does not empower the Magistrate to dismiss a complaint for default or non- prosecution. He would also submit that one of the essential ingredients for invoking section 256 of Cr.P.C. is that the complainant ought not to have appeared on the date fixed for hearing. However, admittedly, the complainant was in fact present and the impugned order records the same. It is submitted that even if the complainant had been absent, the Magistrate may not have authority to dismiss the matter for default or non-prosecution.

4. To the contrary, learned counsel for the respondents would submit that this is a case in which Section 256 Cr.P.C. was invoked and that, as would be evident upon perusal of the impugned order, the complainant had not been prosecuting the matter for a considerable period and in view thereof, order of dismissal for default ought to be treated/deemed to be an order of acquittal, as it is an order passed during the post-cognizance stage. He would place reliance upon the judgment of the Hon’ble Supreme Court in the case of S. Ramakrishna vs. S. Rami Reddy (Dead) by his LRs and others, reported in 2008 (5) SCC 535, and would also draw support from order of this Court in Crl.O.P.

No. 6905 of 2022, dated 06.06.2022.

5. Heard both sides and perused the materials available on record.

6. This court is of the view that there is merit in the submission made by the learned Senior Counsel appearing on behalf of the petitioner for the following reasons :

Before proceeding further it may be relevant to refer Section 256 of Cr.P.C. which reads as under :

'' 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