Legal Provisions of Section 256 of Code of Criminal Procedure, 1973 (Cr.P.C.), India.
Non-appearance or death of complainant:
This section applies to cases where summons has been issued to the accused on the complaint and the complainant does not appear before the Court on the day appointed for the appearance of the accused. Similar provisions exist in Section 249 to be applicable in a warrant case.
ADVERTISEMENTS:
The Rajasthan High Court held that where a Magistrate- refused to dismiss a complaint because on the date of filing the complaint, the complainant was not present, though he was present on the next day, the provisions of Section 256 were not attracted as the date of filing the complaint was not the date fixed for the appearance of the accused.
Where the complainant is absent on the date of hearing the Magistrate may either (i) acquit the accused, or (ii) adjourn the case for some future date; or (iii) dispense with the attendance of the complainant and proceed with the case. The Magistrate has the discretion to choose either of these three alternatives applying his judicial mind.
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An order of acquittal under this section is a final order of acquittal and the accused cannot be tried for the same offence again. So also, there is no provision in the Code empowering a Magistrate to revive a case after an order of acquittal under Section 256 has been made by him.
ADVERTISEMENTS:
Sub-section (2) makes it clear that the provisions of sub-section (1) as stated above shall be equally applicable in case of non-appearance of the complainant on the date of hearing due to his death.
In case of absence of death of the complainant, the Magistrate may use his judicial discretion. He may—
(1) Order the acquittal of the accused if he deems it proper; or
(2) Postpone the hearing for some future date; or
ADVERTISEMENTS:
(3) Proceed with the case further keeping aside the absence of the accused due to his non-appearance or death, as the case may. where he finds it necessary to do so in the interest of justice.
The Supreme Court, however in S. Anand v. Vasumathi Chandrashekar held that dismissal of complaint in a case involving dishonour of cheque, on the ground of nonappearance of complainant was not proper because witnesses on behalf of complainant had been examined and complainant closed his evidence and a date was fixed for examination of defence witnesses.
Under these circumstances attendance of complainant was not essential for the progress of the case. Keeping in view the fact that the complaint petition was filed as far back as on 10 January, 2002, the Court directed that the trial Court should dispose of the case as expeditiously as possible and directed both the accused and complainant to appear in the trial Court within two weeks from the date of judgment.
Where on the date of argument, both the complainant and his counsel remained absent and the accused was acquitted, his acquittal was upheld by the High Court of Madras as the complainant failed to appear without a just cause.
The High Court of Bombay in Hotel Bandra International (P) Ltd. v. Brij Mehra, held that where the complainant filed a complaint regarding bouncing of cheque against the director of a company, but they said director had ceased to be a director of that company on the date of complaint, in such a case it would be proper on the part of the Magistrate to dismiss the complaint and order acquittal of the said director even though the complainant or his counsel was present on the date on which the accused was ordered to appear before the Court.