Full Judgment Text
REPORTABLE
2025 INSC 415
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO………………… OF 2025
[ARISING OUT OF SLP (Crl.) NO. 205 OF 2025]
RANJIT SARKAR …APPELLANT
VS.
RAVI GANESH BHARDWAJ AND OTHERS …RESPONDENTS
J U D G M E N T
DIPANKAR DATTA, J.
1. Leave granted.
2. This appeal, inter alia , tasks us to interpret Section 256 of the Code
1
of Criminal Procedure, 1973 .
3. The appellant’s son, holder of a degree of Doctor of Philosophy, died
Signature Not Verified
Digitally signed by
JATINDER KAUR
Date: 2025.03.29
16:10:43 IST
Reason:
relatively young at the age of 36 years. Such unfortunate death was
th
preceded by a traumatic fall that he had from a staircase on 10 July,
1
Cr. PC
2
2014. The appellant had his son immediately admitted to a private
hospital at Dum Dum, Kolkata. However, according to the appellant, it
was due to the criminal medical negligence of the hospital and the doctors
attending on his son that he could not survive the hemorrhage caused by
such fall.
4. Apart from proceedings initiated elsewhere, the appellant lodged a
th
complaint under Section 200, Cr. PC before the 4 Court of Judicial
2
Magistrate, Barrackpore, North 24 Parganas, Kolkata alleging offence
3
committed under Section 304-A, Indian penal Code, 1860 . The Judicial
Magistrate upon recording the statement of the appellant on oath, issued
process under Section 204(1), Cr. PC against, inter alia , the respondents
for alleged commission of offence under Section 304A, Indian Penal Code,
1860.
5. The respondents were arrayed as some of the accused in the
complaint. Upon service of summons on them, the respondents
4
approached the High Court at Calcutta by presenting an application
5
under Section 482 of the Cr. PC seeking quashing of such summons.
Upon hearing the petition, a learned Judge of the High Court stayed
th
proceedings before the Judicial Magistrate vide order dated 18
September, 2018. Such order was extended from time to time.
2
Complaint Case No.2/2017
3
IPC
4
High Court
5
CRR No. 2327 of 2018
3
6. In the third week of March, 2020, national lockdown was clamped
6
owing to outbreak of C OVID . The Standard Operating Procedure for
functioning of courts in West Bengal during the pandemic, circulated vide
th
notification dated 27 November, 2020 of the Registrar General of the
High Court, inter alia , contained the following stipulation:
“12. Ordinarily, matters should not be dismissed for default, both in
the High Court and in the Subordinate Courts, except upon giving
cogent reasons recording the deliberate avoidance or recalcitrance
of the party or parties absent. Similarly, extreme caution should be
exercised before passing any ex parte order”.
7. Despite proceedings of the complaint having been stayed by the
High Court and despite the subsistence of the SoP, duly notified, the
th
Judicial Magistrate called the complaint case on 6 January, 2021.
Despite repeated calls, the appellant had remained absent. He was not
represented by his advocate either. Accordingly, the Judicial Magistrate
required the appellant to show-cause why the complaint shall not be
th
dismissed and, accordingly, fixed 16 April, 2021 for his response.
8. At the relevant time, the pandemic was still taking lives of old and
young alike. The appellant, a septuagenarian, was attacked by the C OVID
virus and was under medical treatment owing to which he had not risked
his life by appearing before the Judicial Magistrate. Thus, he was again
th
found absent on 16 April, 2021. No steps having been taken by the
th
appellant pursuant to the order dated 6 January, 2021, the Judicial
6
SoP
4
th
Magistrate dismissed the complaint for default vide order dated 16 April,
2021.
th
9. CRR No. 2327 of 2018 was thereafter listed on 9 September, 2021
before another learned Judge of the High Court. The appellant, though
impleaded as an opposite party therein, was once again not present. The
learned Judge, seized of the same, noted that the complaint had been
th
dismissed for default by the Judicial Magistrate vide order dated 16
April, 2021, yet, proceeded to pass the following order:
“ * So far as the provision of Criminal Procedure Code is concerned, the
only section which is applicable will be Section 256 of the Code of Criminal
Procedure in cases where the complainant is absent and the learned
Magistrate is not willing to proceed with the case. The proper
interpretation of application of the section obviously will be an order of
acquittal in favour of the accused for non-appearance of the complainant.
In view of the present position of the complaint case, no order is required
to be passed in the revisional application being CRR 2327 of 2018.
As such, the same is disposed of. Interim order, if any, is hereby
vacated.”
nd
10. In the meanwhile, however, the appellant had moved the 2 Court
7
of the Additional District and Sessions Judge, Barrackpore, in revision ,
th
questioning the orders of the Judicial Magistrate dated 6 January, 2021
th
and 16 April, 2021. Upon hearing the parties, the Sessions Judge
proceeded to overrule the objection of the respondents that the revision
was not maintainable and held that the appellant having sufficient cause
for not presenting himself, he had set up a case for interference with the
order dismissing the complaint for default. The Sessions Judge further
held that the appellant had pursued the proper course of action by
7
Criminal Revision 262/2021
5
th
applying for revision against the order dated 16 April, 2021. It was also
noted, having regard to the provisions contained in Section 256, Cr. PC,
th
that since the respondents too were not present on 16 April, 2021, the
Judicial Magistrate had not recorded an order of acquittal which could
have been passed had such date been appointed for their appearance.
The criminal revision was, accordingly, allowed on contest. The impugned
th th
orders dated 6 January, 2021 and 16 April, 2021 passed on Complaint
Case No. 2 of 2017 were set aside, with the result that the said case was
restored to its file and number. The parties were directed to appear
rd
before the Judicial Magistrate on 23 December, 2022.
th
11. The revisional order dated 19 November, 2022 was next
challenged by the respondents before the High Court in a fresh application
8 th
under Section 482, Cr. PC . By an order dated 15 July, 2024, another
learned Judge of the High Court allowed the same. The revisional order
was set aside with the result that the complaint stood closed. Relevant
th
passages from the said order dated 15 July, 2024 of the learned Judge
read as follows:
“*
By an order passed on April 16, 2021 in C. Case No. 02 of 2017, the
learned Judicial Magistrate, 4th Court, Barrackpore dismissed the
complaint case for default since the complainant took no steps on the said
date was found absent on repeated calls despite issuance of show cause
upon him vide an order dated January 06, 2021. The complainant/private
opposite party came up before this Court in a revisional application being
CRR No. 2327 of 2018 challenging the said order and by an order passed
on September 09, 2021, this Court observed as follows: -
8
CRR No. 359 of 2023
6
‘The proper interpretation of application of the section obviously will
be an order of acquittal in favour of the accused for non-
appearance of the complainant.’
This Court disposed of the revisional application on such score.
Subsequently, orders of the learned Judicial Magistrate dated
January 06, 2021 and April 06, 2021 were assailed before the
nd
learned Additional District and Sessions Judge, 2 Court,
Barrackpore by the complainant/ opposite party and by the order
impugned dated November 19, 2022, the learned Sessions Judge
allowed the revisional application upon setting aside the orders of
the learned Magistrate with an observation that such order of
acquittal and dismissal can only be passed on the date or dates
when those dates are fixed for appearance of the accused and
hearing of any matter in the complaint case.
Learned counsel for the petitioner submits that after the
observation made by this Court, the learned Sessions Judge had no
authority to make any observation on the said issue in the
revisional application filed before him and as such, the judgment
needs to be quashed.
*
The primary issue which is required to be taken into consideration
in the present application is whether after an observation made by
this Court, the learned Sessions Judge had any authority to deal
with the same issue and make any observation contrary to that of
this Court.
This Court, vide an order passed on September 09, 2021, clearly
observed that in view of Section 256 of the Code of Criminal
Procedure, where the complainant is absent, the proper
interpretation of the application of the section would be an order of
acquittal in favour of the accused. In other words, this Court made
a clear observation that the case ought not to have been dismissed
for default but an order of acquittal in favour of the accused ought
to have been made. The revisional application was disposed of since
no order was required to be passed in view of the position of the
complaint case.
In view of the above, this Court is inclined to hold that the learned
nd
District and Sessions Judge, 2 Court, Barrackpore, in dealing with
the merits of the order which was already dealt with by this Court in
observing that the order should be read/interpreted as an order of
acquittal in favour of the accused, has in fact sat in appeal over the
order of this Court which is not enjoined in law. A decision arrived
at by the Court could not have been reconsidered by the learned
Judge.
*”
(emphasis supplied)
7
th
12. The said order dated 15 July, 2024 is questioned by the appellant
in this appeal.
13. We have heard the appellant in person and Mr. Mukherjee, learned
senior counsel appearing for the respondents (being the petitioners before
the High Court).
14. There can be and, in fact, exists no doubt that the High Court in
th
passing the impugned order dated 15 July, 2024 has occasioned a grave
failure of justice.
15. The impugned order of the learned Judge reveals a narrow focus
stemming from a one-track mind. Why the appellant could not appear
th th
before the Judicial Magistrate on 6 January, 2021 and 16 April, 2021
and whether the Judicial Magistrate could have called the complaint case
for ascertaining whether cause was shown, had not been considered at
all. First of all, C OVID restrictions being in place and in terms of the SoP
framed by the High Court, the Judicial Magistrate could not have
th
dismissed the complaint for default on 16 April, 2021 without recording
a satisfaction that either the appellant was deliberately avoiding
participation in the proceedings or that his recalcitrance was such, which
left the Judicial Magistrate with no other option but to dismiss the
complaint for default. Secondly, the proceedings before the Judicial
Magistrate having been stayed by the High Court by interim orders
passed from time to time, the Judicial Magistrate lacked the jurisdiction to
pass any order on the complaint case till such time the stay was lifted.
8
Since the Judicial Magistrate could not have dismissed the complaint for
th
default on 16 April, 2021 in view of the above-referred factors, by
reason of interference with the revisional order of the Sessions Judge
under challenge in CRR No. 359 of 2023, the learned Judge has validated
th
such illegal order of dismissal dated 16 April, 2021 resulting in the
appellant’s complaint being closed without just reason. This is the first
ground on which we propose to interfere with the impugned order.
16. Besides that, the learned Judge proceeded on a total misconception
of the factual position. Bare perusal of the impugned order, as extracted,
would reveal that the learned Judge was anchored in the belief that it was
the appellant who had approached the High Court by filing CRR No. 2327
of 2018. As noticed, CRR No. 2327 of 2018 was at the instance of the
respondents. The extent of influence that such factual misconception had
on the learned Judge’s judicial mind, adversely affecting the interest of
the appellant, is self-evident. The entire focus seems to have shifted to
answer what the learned Judge felt was “the primary issue”, that is,
whether the Sessions Judge could have dealt with the issue (which had
earlier been dealt with by the High Court while disposing of CRR No. 2327
of 2018) and interfere, in exercise of revisional powers, taking a view
contrary to that taken by the High Court on the appellant’s petition.
Viewed in the conspectus of the issues arising for decision before the High
Court, the error of understanding the facts is unacceptable.
17. The next error that the learned Judge committed arises from a
failure to consider the law in the proper perspective as well as the weight
9
th
of the observation made by the High Court in the earlier order dated 9
th
September, 2021. The complaint case was listed on 16 April, 2021
before the Judicial Magistrate for a limited purpose, that is, cause to be
shown by the appellant as to why for his absence the complaint should
not be dismissed for default. On that date, even the respondents were
absent. Overlooking these, the learned Judge placed undue reliance on
th
the order dated 9 September, 2021 as if the observation contained
therein on interpretation of Section 256, Cr. PC was the final word and
binding on all notwithstanding the remedies that law provided to the
appellant to challenge the order of dismissal for default. The law
th
permitted the appellant to question the order of dismissal dated 16 April,
2021, which he did question. We are minded to observe, in the light of
the subsequent judicial proceedings and orders passed therein, that the
learned Judge (who had the occasion to consider CRR No. 2327 of 2018)
would have done better if CRR No. 2327 of 2018 were disposed of merely
recording that nothing survived for decision on the challenge to the
summons in view of dismissal of the complaint for default; instead, the
learned Judge went on to make an observation with regard to what would
be the proper interpretation of Section 256, Cr. PC qua the outcome of
the complaint case in favour of the accused, arising out of non-
appearance of the complainant which, apart from being wholly
unwarranted, has resulted in unnecessary proceedings which were wholly
avoidable. Even otherwise, such observation was patently incorrect since
bare reading of Section 256, Cr. PC, having regard to the attending facts
10
and circumstances, did not entail an acquittal for the respondents, as we
presently propose to demonstrate. Significantly, the learned Judge seized
of CRR No. 359 of 2023 interfered with the impugned revisional order
merely because of such previous observation without any proper
application of mind.
18. Chapter XX of the Cr. PC is titled T RIAL OF S UMMONS -C ASES BY
M AGISTRATES . It has 8 (eight) sections from Section 251 to 259. Section
254 lays down the procedure to be followed if conviction is not recorded
in terms of Sections 252 and 253. An acquittal can be recorded by a
magistrate under Section 255, Cr. PC, if considering the evidence, it is
found that the accused is not guilty. An acquittal can also be recorded by
the magistrate under Section 256, Cr. PC, without considering the
evidence on record, in the stated situations. Section 256 of the Cr. PC
reads as follows:
“ 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 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”.
19. What, therefore, assumes importance for invoking Section 256, Cr.
PC is the purpose for which the case is fixed. If the date is not appointed
11
for appearance of the accused but for some other purpose, like in the
present case, acquittal of the accused does not necessarily follow as the
logical result of absence of the complainant. Also, the words “on any day
subsequent thereto” must be understood in reference to the words
preceding, namely, “the day appointed for the appearance of the
accused”. Say, for instance, if a date is fixed by the magistrate for
bringing an order from a superior court or for showing cause why an order
of dismissal should not be passed for continuous absence of the
complainant or for producing any material, which is not intrinsically
connected with any step towards progress of the lis , and the complainant
is found to be absent, a dismissal of the complaint can be ordered but the
provision for acquitting the accused may not be attracted unless it
happens to be the date appointed for appearance of the accused and they
do appear personally or through an advocate; also, without the
magistrate recording a clear acquittal along with the order of dismissal of
the complaint, acquittal need not be read into every such order of
dismissal of a complaint owing to absence of the complainant.
th
20. From the tenor of the order dated 6 January, 2021, it is clear that
th
16 April, 2021 was not the day appointed for appearance of the
respondents. It was the date on which the appellant was required to show
cause. Had C OVID restrictions not been in place and in otherwise normal
circumstances, if the appellant remained absent on the date appointed for
appearance of the respondents, without showing sufficient cause, the
Judicial Magistrate in terms of Section 256, Cr. PC would have been
12
justified in recording an order of acquittal of the respondents had they
been present unless, for some reason, he intended to adjourn the hearing
to some other day. However, the jurisdictional facts for recording an
acquittal under Section 256, Cr. PC were not satisfied in the present case,
firstly, because it was not the appointed day for appearance of the
respondents and secondly, they were also not present. Owing to the
absence of the appellant and owing to his omission to respond to the
show-cause, the Judicial Magistrate could, at best, be justified in
dismissing the complaint for default, which he did but which he could not
th
have done having regard to the facts of the notification dated 27
th
November, 2020 being in force on 16 April, 2021 and operation of the
th
stay order granted by the High Court on 18 September, 2018, since
extended from time to time.
21. The observation made by the learned Judge seized of CRR No. 2327
of 2018 based on his interpretation of Section 256, Cr. PC being flawed,
the other learned Judge ought not to have made such flawed observation
as the main plank for allowing CRR No. 359 of 2023. It was absolutely
incorrect on the part of the learned Judge to hold that the Sessions Judge
was sitting in appeal over the order of the High Court. The Sessions Judge
had duly held the revision petition to be maintainable and had assigned
sufficient reason why the complaint should not have been dismissed
based on a correct interpretation of Section 256, Cr. PC.
22. Even otherwise, both the learned Judges ought to have realized that
the appellant did have multiple remedies available in law to pursue for
13
th
laying a challenge to the order dated 16 April, 2021 and which, in fact,
he did pursue as the correct course of action; and, indeed, succeeded in
restoration of his complaint. Interference, therefore, was not called for.
th
23. For the reasons aforesaid, we hold the impugned order dated 15
July, 2024 allowing CRR No. 359 of 2023 to be unsustainable in law.
Consequently, it is set aside. As a sequitur, Complaint Case No. 2 of 2017
shall stand revived on the file of the Judicial Magistrate and be restored to
its original file and number.
24. Considering the fact that CRR No. 2327 of 2018 had been disposed
th
of by the order dated 9 September, 2021 in view of dismissal of the
th
complaint case for default, we also set aside the order dated 9
September, 2021 of disposal of CRR No. 2327 of 2018 in exercise of
power conferred by Article 142 of the Constitution of India and revive the
same by restoring it on the file of the High Court.
25. However, the High Court shall first decide CRR No. 2327 of 2018, as
early as possible, preferably within six months from date of receipt of a
copy of this order. The parties are directed to appear before the roster
th
bench of the High Court on 17 April, 2025, whereafter the proceedings
may be taken to its logical conclusion in accordance with law. Depending
on the result of CRR No. 2327 of 2018, the complaint case shall also be
taken to its logical conclusion in accordance with law, as early as possible.
26. The appeal stands allowed to the extent mentioned above. Pending
application(s), if any, stand disposed of.
14
27. We clarify not having examined the rival contentions on its merits.
28. Registry is directed to communicate this order to the Registrar
General of the High Court, forthwith, for facilitating early disposal of CRR
No. 2327 of 2018.
……………………………J.
(DIPANKAR DATTA)
……………………………J.
(MANMOHAN)
NEW DELHI;
MARCH 17, 2025.
2025 INSC 415
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO………………… OF 2025
[ARISING OUT OF SLP (Crl.) NO. 205 OF 2025]
RANJIT SARKAR …APPELLANT
VS.
RAVI GANESH BHARDWAJ AND OTHERS …RESPONDENTS
J U D G M E N T
DIPANKAR DATTA, J.
1. Leave granted.
2. This appeal, inter alia , tasks us to interpret Section 256 of the Code
1
of Criminal Procedure, 1973 .
3. The appellant’s son, holder of a degree of Doctor of Philosophy, died
Signature Not Verified
Digitally signed by
JATINDER KAUR
Date: 2025.03.29
16:10:43 IST
Reason:
relatively young at the age of 36 years. Such unfortunate death was
th
preceded by a traumatic fall that he had from a staircase on 10 July,
1
Cr. PC
2
2014. The appellant had his son immediately admitted to a private
hospital at Dum Dum, Kolkata. However, according to the appellant, it
was due to the criminal medical negligence of the hospital and the doctors
attending on his son that he could not survive the hemorrhage caused by
such fall.
4. Apart from proceedings initiated elsewhere, the appellant lodged a
th
complaint under Section 200, Cr. PC before the 4 Court of Judicial
2
Magistrate, Barrackpore, North 24 Parganas, Kolkata alleging offence
3
committed under Section 304-A, Indian penal Code, 1860 . The Judicial
Magistrate upon recording the statement of the appellant on oath, issued
process under Section 204(1), Cr. PC against, inter alia , the respondents
for alleged commission of offence under Section 304A, Indian Penal Code,
1860.
5. The respondents were arrayed as some of the accused in the
complaint. Upon service of summons on them, the respondents
4
approached the High Court at Calcutta by presenting an application
5
under Section 482 of the Cr. PC seeking quashing of such summons.
Upon hearing the petition, a learned Judge of the High Court stayed
th
proceedings before the Judicial Magistrate vide order dated 18
September, 2018. Such order was extended from time to time.
2
Complaint Case No.2/2017
3
IPC
4
High Court
5
CRR No. 2327 of 2018
3
6. In the third week of March, 2020, national lockdown was clamped
6
owing to outbreak of C OVID . The Standard Operating Procedure for
functioning of courts in West Bengal during the pandemic, circulated vide
th
notification dated 27 November, 2020 of the Registrar General of the
High Court, inter alia , contained the following stipulation:
“12. Ordinarily, matters should not be dismissed for default, both in
the High Court and in the Subordinate Courts, except upon giving
cogent reasons recording the deliberate avoidance or recalcitrance
of the party or parties absent. Similarly, extreme caution should be
exercised before passing any ex parte order”.
7. Despite proceedings of the complaint having been stayed by the
High Court and despite the subsistence of the SoP, duly notified, the
th
Judicial Magistrate called the complaint case on 6 January, 2021.
Despite repeated calls, the appellant had remained absent. He was not
represented by his advocate either. Accordingly, the Judicial Magistrate
required the appellant to show-cause why the complaint shall not be
th
dismissed and, accordingly, fixed 16 April, 2021 for his response.
8. At the relevant time, the pandemic was still taking lives of old and
young alike. The appellant, a septuagenarian, was attacked by the C OVID
virus and was under medical treatment owing to which he had not risked
his life by appearing before the Judicial Magistrate. Thus, he was again
th
found absent on 16 April, 2021. No steps having been taken by the
th
appellant pursuant to the order dated 6 January, 2021, the Judicial
6
SoP
4
th
Magistrate dismissed the complaint for default vide order dated 16 April,
2021.
th
9. CRR No. 2327 of 2018 was thereafter listed on 9 September, 2021
before another learned Judge of the High Court. The appellant, though
impleaded as an opposite party therein, was once again not present. The
learned Judge, seized of the same, noted that the complaint had been
th
dismissed for default by the Judicial Magistrate vide order dated 16
April, 2021, yet, proceeded to pass the following order:
“ * So far as the provision of Criminal Procedure Code is concerned, the
only section which is applicable will be Section 256 of the Code of Criminal
Procedure in cases where the complainant is absent and the learned
Magistrate is not willing to proceed with the case. The proper
interpretation of application of the section obviously will be an order of
acquittal in favour of the accused for non-appearance of the complainant.
In view of the present position of the complaint case, no order is required
to be passed in the revisional application being CRR 2327 of 2018.
As such, the same is disposed of. Interim order, if any, is hereby
vacated.”
nd
10. In the meanwhile, however, the appellant had moved the 2 Court
7
of the Additional District and Sessions Judge, Barrackpore, in revision ,
th
questioning the orders of the Judicial Magistrate dated 6 January, 2021
th
and 16 April, 2021. Upon hearing the parties, the Sessions Judge
proceeded to overrule the objection of the respondents that the revision
was not maintainable and held that the appellant having sufficient cause
for not presenting himself, he had set up a case for interference with the
order dismissing the complaint for default. The Sessions Judge further
held that the appellant had pursued the proper course of action by
7
Criminal Revision 262/2021
5
th
applying for revision against the order dated 16 April, 2021. It was also
noted, having regard to the provisions contained in Section 256, Cr. PC,
th
that since the respondents too were not present on 16 April, 2021, the
Judicial Magistrate had not recorded an order of acquittal which could
have been passed had such date been appointed for their appearance.
The criminal revision was, accordingly, allowed on contest. The impugned
th th
orders dated 6 January, 2021 and 16 April, 2021 passed on Complaint
Case No. 2 of 2017 were set aside, with the result that the said case was
restored to its file and number. The parties were directed to appear
rd
before the Judicial Magistrate on 23 December, 2022.
th
11. The revisional order dated 19 November, 2022 was next
challenged by the respondents before the High Court in a fresh application
8 th
under Section 482, Cr. PC . By an order dated 15 July, 2024, another
learned Judge of the High Court allowed the same. The revisional order
was set aside with the result that the complaint stood closed. Relevant
th
passages from the said order dated 15 July, 2024 of the learned Judge
read as follows:
“*
By an order passed on April 16, 2021 in C. Case No. 02 of 2017, the
learned Judicial Magistrate, 4th Court, Barrackpore dismissed the
complaint case for default since the complainant took no steps on the said
date was found absent on repeated calls despite issuance of show cause
upon him vide an order dated January 06, 2021. The complainant/private
opposite party came up before this Court in a revisional application being
CRR No. 2327 of 2018 challenging the said order and by an order passed
on September 09, 2021, this Court observed as follows: -
8
CRR No. 359 of 2023
6
‘The proper interpretation of application of the section obviously will
be an order of acquittal in favour of the accused for non-
appearance of the complainant.’
This Court disposed of the revisional application on such score.
Subsequently, orders of the learned Judicial Magistrate dated
January 06, 2021 and April 06, 2021 were assailed before the
nd
learned Additional District and Sessions Judge, 2 Court,
Barrackpore by the complainant/ opposite party and by the order
impugned dated November 19, 2022, the learned Sessions Judge
allowed the revisional application upon setting aside the orders of
the learned Magistrate with an observation that such order of
acquittal and dismissal can only be passed on the date or dates
when those dates are fixed for appearance of the accused and
hearing of any matter in the complaint case.
Learned counsel for the petitioner submits that after the
observation made by this Court, the learned Sessions Judge had no
authority to make any observation on the said issue in the
revisional application filed before him and as such, the judgment
needs to be quashed.
*
The primary issue which is required to be taken into consideration
in the present application is whether after an observation made by
this Court, the learned Sessions Judge had any authority to deal
with the same issue and make any observation contrary to that of
this Court.
This Court, vide an order passed on September 09, 2021, clearly
observed that in view of Section 256 of the Code of Criminal
Procedure, where the complainant is absent, the proper
interpretation of the application of the section would be an order of
acquittal in favour of the accused. In other words, this Court made
a clear observation that the case ought not to have been dismissed
for default but an order of acquittal in favour of the accused ought
to have been made. The revisional application was disposed of since
no order was required to be passed in view of the position of the
complaint case.
In view of the above, this Court is inclined to hold that the learned
nd
District and Sessions Judge, 2 Court, Barrackpore, in dealing with
the merits of the order which was already dealt with by this Court in
observing that the order should be read/interpreted as an order of
acquittal in favour of the accused, has in fact sat in appeal over the
order of this Court which is not enjoined in law. A decision arrived
at by the Court could not have been reconsidered by the learned
Judge.
*”
(emphasis supplied)
7
th
12. The said order dated 15 July, 2024 is questioned by the appellant
in this appeal.
13. We have heard the appellant in person and Mr. Mukherjee, learned
senior counsel appearing for the respondents (being the petitioners before
the High Court).
14. There can be and, in fact, exists no doubt that the High Court in
th
passing the impugned order dated 15 July, 2024 has occasioned a grave
failure of justice.
15. The impugned order of the learned Judge reveals a narrow focus
stemming from a one-track mind. Why the appellant could not appear
th th
before the Judicial Magistrate on 6 January, 2021 and 16 April, 2021
and whether the Judicial Magistrate could have called the complaint case
for ascertaining whether cause was shown, had not been considered at
all. First of all, C OVID restrictions being in place and in terms of the SoP
framed by the High Court, the Judicial Magistrate could not have
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dismissed the complaint for default on 16 April, 2021 without recording
a satisfaction that either the appellant was deliberately avoiding
participation in the proceedings or that his recalcitrance was such, which
left the Judicial Magistrate with no other option but to dismiss the
complaint for default. Secondly, the proceedings before the Judicial
Magistrate having been stayed by the High Court by interim orders
passed from time to time, the Judicial Magistrate lacked the jurisdiction to
pass any order on the complaint case till such time the stay was lifted.
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Since the Judicial Magistrate could not have dismissed the complaint for
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default on 16 April, 2021 in view of the above-referred factors, by
reason of interference with the revisional order of the Sessions Judge
under challenge in CRR No. 359 of 2023, the learned Judge has validated
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such illegal order of dismissal dated 16 April, 2021 resulting in the
appellant’s complaint being closed without just reason. This is the first
ground on which we propose to interfere with the impugned order.
16. Besides that, the learned Judge proceeded on a total misconception
of the factual position. Bare perusal of the impugned order, as extracted,
would reveal that the learned Judge was anchored in the belief that it was
the appellant who had approached the High Court by filing CRR No. 2327
of 2018. As noticed, CRR No. 2327 of 2018 was at the instance of the
respondents. The extent of influence that such factual misconception had
on the learned Judge’s judicial mind, adversely affecting the interest of
the appellant, is self-evident. The entire focus seems to have shifted to
answer what the learned Judge felt was “the primary issue”, that is,
whether the Sessions Judge could have dealt with the issue (which had
earlier been dealt with by the High Court while disposing of CRR No. 2327
of 2018) and interfere, in exercise of revisional powers, taking a view
contrary to that taken by the High Court on the appellant’s petition.
Viewed in the conspectus of the issues arising for decision before the High
Court, the error of understanding the facts is unacceptable.
17. The next error that the learned Judge committed arises from a
failure to consider the law in the proper perspective as well as the weight
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of the observation made by the High Court in the earlier order dated 9
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September, 2021. The complaint case was listed on 16 April, 2021
before the Judicial Magistrate for a limited purpose, that is, cause to be
shown by the appellant as to why for his absence the complaint should
not be dismissed for default. On that date, even the respondents were
absent. Overlooking these, the learned Judge placed undue reliance on
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the order dated 9 September, 2021 as if the observation contained
therein on interpretation of Section 256, Cr. PC was the final word and
binding on all notwithstanding the remedies that law provided to the
appellant to challenge the order of dismissal for default. The law
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permitted the appellant to question the order of dismissal dated 16 April,
2021, which he did question. We are minded to observe, in the light of
the subsequent judicial proceedings and orders passed therein, that the
learned Judge (who had the occasion to consider CRR No. 2327 of 2018)
would have done better if CRR No. 2327 of 2018 were disposed of merely
recording that nothing survived for decision on the challenge to the
summons in view of dismissal of the complaint for default; instead, the
learned Judge went on to make an observation with regard to what would
be the proper interpretation of Section 256, Cr. PC qua the outcome of
the complaint case in favour of the accused, arising out of non-
appearance of the complainant which, apart from being wholly
unwarranted, has resulted in unnecessary proceedings which were wholly
avoidable. Even otherwise, such observation was patently incorrect since
bare reading of Section 256, Cr. PC, having regard to the attending facts
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and circumstances, did not entail an acquittal for the respondents, as we
presently propose to demonstrate. Significantly, the learned Judge seized
of CRR No. 359 of 2023 interfered with the impugned revisional order
merely because of such previous observation without any proper
application of mind.
18. Chapter XX of the Cr. PC is titled T RIAL OF S UMMONS -C ASES BY
M AGISTRATES . It has 8 (eight) sections from Section 251 to 259. Section
254 lays down the procedure to be followed if conviction is not recorded
in terms of Sections 252 and 253. An acquittal can be recorded by a
magistrate under Section 255, Cr. PC, if considering the evidence, it is
found that the accused is not guilty. An acquittal can also be recorded by
the magistrate under Section 256, Cr. PC, without considering the
evidence on record, in the stated situations. Section 256 of the Cr. PC
reads as follows:
“ 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 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”.
19. What, therefore, assumes importance for invoking Section 256, Cr.
PC is the purpose for which the case is fixed. If the date is not appointed
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for appearance of the accused but for some other purpose, like in the
present case, acquittal of the accused does not necessarily follow as the
logical result of absence of the complainant. Also, the words “on any day
subsequent thereto” must be understood in reference to the words
preceding, namely, “the day appointed for the appearance of the
accused”. Say, for instance, if a date is fixed by the magistrate for
bringing an order from a superior court or for showing cause why an order
of dismissal should not be passed for continuous absence of the
complainant or for producing any material, which is not intrinsically
connected with any step towards progress of the lis , and the complainant
is found to be absent, a dismissal of the complaint can be ordered but the
provision for acquitting the accused may not be attracted unless it
happens to be the date appointed for appearance of the accused and they
do appear personally or through an advocate; also, without the
magistrate recording a clear acquittal along with the order of dismissal of
the complaint, acquittal need not be read into every such order of
dismissal of a complaint owing to absence of the complainant.
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20. From the tenor of the order dated 6 January, 2021, it is clear that
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16 April, 2021 was not the day appointed for appearance of the
respondents. It was the date on which the appellant was required to show
cause. Had C OVID restrictions not been in place and in otherwise normal
circumstances, if the appellant remained absent on the date appointed for
appearance of the respondents, without showing sufficient cause, the
Judicial Magistrate in terms of Section 256, Cr. PC would have been
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justified in recording an order of acquittal of the respondents had they
been present unless, for some reason, he intended to adjourn the hearing
to some other day. However, the jurisdictional facts for recording an
acquittal under Section 256, Cr. PC were not satisfied in the present case,
firstly, because it was not the appointed day for appearance of the
respondents and secondly, they were also not present. Owing to the
absence of the appellant and owing to his omission to respond to the
show-cause, the Judicial Magistrate could, at best, be justified in
dismissing the complaint for default, which he did but which he could not
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have done having regard to the facts of the notification dated 27
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November, 2020 being in force on 16 April, 2021 and operation of the
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stay order granted by the High Court on 18 September, 2018, since
extended from time to time.
21. The observation made by the learned Judge seized of CRR No. 2327
of 2018 based on his interpretation of Section 256, Cr. PC being flawed,
the other learned Judge ought not to have made such flawed observation
as the main plank for allowing CRR No. 359 of 2023. It was absolutely
incorrect on the part of the learned Judge to hold that the Sessions Judge
was sitting in appeal over the order of the High Court. The Sessions Judge
had duly held the revision petition to be maintainable and had assigned
sufficient reason why the complaint should not have been dismissed
based on a correct interpretation of Section 256, Cr. PC.
22. Even otherwise, both the learned Judges ought to have realized that
the appellant did have multiple remedies available in law to pursue for
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laying a challenge to the order dated 16 April, 2021 and which, in fact,
he did pursue as the correct course of action; and, indeed, succeeded in
restoration of his complaint. Interference, therefore, was not called for.
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23. For the reasons aforesaid, we hold the impugned order dated 15
July, 2024 allowing CRR No. 359 of 2023 to be unsustainable in law.
Consequently, it is set aside. As a sequitur, Complaint Case No. 2 of 2017
shall stand revived on the file of the Judicial Magistrate and be restored to
its original file and number.
24. Considering the fact that CRR No. 2327 of 2018 had been disposed
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of by the order dated 9 September, 2021 in view of dismissal of the
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complaint case for default, we also set aside the order dated 9
September, 2021 of disposal of CRR No. 2327 of 2018 in exercise of
power conferred by Article 142 of the Constitution of India and revive the
same by restoring it on the file of the High Court.
25. However, the High Court shall first decide CRR No. 2327 of 2018, as
early as possible, preferably within six months from date of receipt of a
copy of this order. The parties are directed to appear before the roster
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bench of the High Court on 17 April, 2025, whereafter the proceedings
may be taken to its logical conclusion in accordance with law. Depending
on the result of CRR No. 2327 of 2018, the complaint case shall also be
taken to its logical conclusion in accordance with law, as early as possible.
26. The appeal stands allowed to the extent mentioned above. Pending
application(s), if any, stand disposed of.
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27. We clarify not having examined the rival contentions on its merits.
28. Registry is directed to communicate this order to the Registrar
General of the High Court, forthwith, for facilitating early disposal of CRR
No. 2327 of 2018.
……………………………J.
(DIPANKAR DATTA)
……………………………J.
(MANMOHAN)
NEW DELHI;
MARCH 17, 2025.