Bombay High Court
Sulbha W/O. Subhash Agarwal vs Sadashiv S/O. Namdeo Waghmare on 18 July, 2017
Bench: V.L. Achliya
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
CRIMINAL APPEAL NO.127 OF 2017
Sulbha w/o Subhash Agarwal,
age 55 years, Occu. Household,
r/o Shivaji Nagar, Aurangabad,
Tq. & Dist. Aurangabad. ... APPELLANT.
VERSUS
Sadashiv s/o Namdeo Waghmare,
age major, occu. Service,
r/o S.T. Colony, Ambajogai Road,
In front of LIC Office, Latur,
Tq. & Dist. Latur.
At Post Bidkin, Tq. Paithan,
Dist. Aurangabad. ...RESPONDENT.
...
Mr.M.U. Shelke, Advocate for appellant.
Respondent served - absent.
...
CORAM : V.L. ACHLIYA, J.
DATE: 18th JULY, 2017.
ORAL JUDGMENT:
The appeal is directed against the order dated
11.12.2015 passed in S.C.C. No.5624 of 2015 by the
Judicial Magistrate, First Class, Court No.7, Aurangabad.
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By the impugned order, the learned Judge has dismissed
the complaint and acquitted the accused by exercising
powers u/s 256 of Cr.P.C.
2. In view of the limited challenge raised in the appeal
as to the correctness of the impugned order dated
11.12.2015, notice of final disposal was issued to
respondent. In spite of service of notice of final disposal,
the respondent failed to appear.
3. In short, it is contention of the learned Counsel for
the appellant that the impugned order is not sustainable
in law for the reason that such order could not have been
passed in exercise of powers u/s 256 of Cr.P.C. It is
pointed out that the case was lying at the stage of
recording of verification statement of complainant. The
order of issuance of summons was not passed in the
matter.
4. In order to appreciate the submissions advanced, I
have perused the record & proceedings of the case. In
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my view, the impugned order is not sustainable in law.
It is apparent from the face of record that the complaint
was presented on 17.8.2015. Since thereafter, the case
was adjourned for one or the other reason which
includes absence of complainant for verification
statement. Ultimately, the complaint was dismissed with
following order passed on 11.12.2015:
" ORDER BELOW EXH.1.
(Passed on 11.12.2015)
The complainant and the advocate are absent.
The complainant is continuously absent since
02.09.2015. Not made verification of the
complaint. It appears that the complainant is not
interested in conducting the case. Hence, the
complaint is dismissed and the accused is
acquitted of under section 256 of the Code of
Criminal Procedure.
Date : 11.12.2015. Sd/-
Judicial Magistrate First Class,
Court No.7, Aurangabad."
5. From the face of the order, it reveals that the
learned Judge has invoked the powers u/s 256 of Cr.P.C.
in dismissing the complaint and acquitting the accused.
In fact, the stage has not reached to invoke the powers
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u/s 256 of Cr.P.C. In the instant case, the order of
issuance of summons was not passed. Therefore, the
complaint ought to have been dealt with as per the
procedure prescribed in Chapter XV of Cr.P.C. Failure of
complainant to appear for recording of verification
statement, the Court ought to have looked into the
complaint and decided either to dismiss the complaint or
to issue process in the matter as per the provisions
contained in Chapter XV of Cr.P.C. The powers u/s 256
of Cr.P.C. can be invoked if the Court has already issued
process against the accused i.e. the order has been
passed u/s 204 of Cr.P.C. to summon the accused to
face prosecution. If, on the date appointed for
appearance of the accused or any subsequent date, if the
complainant fails to attend hearing fixed by the Court,
then the Court may, if thinks proper, dismiss the
complaint. Section 256 of Cr.P.C. 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
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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."
6. Thus, on due consideration of the submissions
advanced in the light of provisions of section 256 of
Cr.P.C., I have no hesitation to hold that the order
passed by the learned Judge dismissing the complaint
and acquitting the accused in exercise of powers u/s 256
of Cr.P.C., is not sustainable in law. In the instant case,
the stage has not reached to exercise powers u/s 256 of
Cr.P.C. by the trial Court. In this view, the appeal
deserves to be allowed and impugned order is liable to be
set aside. I am, therefore, inclined to allow the appeal
and pass the following order:
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: ORDER :
i) The impugned order dated 11.12.2015
passed in S.C.C. No.5624 of 2015 by the Judicial
Magistrate, First Class, Court No.7, Aurangabad
dismissing the complaint and acquitting accused, is
set aside. The complaint is restored to its original
number;
ii) The complainant is directed to appear before
the trial Court on 7th August, 2017;
iii) The trial Court is directed to proceed further
with the matter from the stage of recording of
evidence and verification.
iv) In case the complainant fails to appear as
directed, the trial Court will be at liberty to proceed
with the matter and pass appropriate order as
deemed fit and proper as per the provisions of
Cr.P.C.
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v) Record & proceedings be sent back to the
trial Court;
vi) Appeal disposed of in above terms.
[ V.L. ACHLIYA, J ]
Kadam.
