Tripura High Court
Mamud Hossen Khadim vs Sri Uttam Sarkar on 10 February, 2025
HIGH COURT OF TRIPURA
AGARTALA
Crl. A. No.23 of 2024
Mamud Hossen Khadim,
Son of Suban Miah Khadim, aged about 44 years,
Resident of village- Khilpara,
P.O. & P.S.- R.K. Pur, Udaipur, District-Gomati, Tripura
......Appellant(s)
Versus
1. Sri Uttam Sarkar,
Son of Sri Rasaraj Chandra Sarkar,
Resident of Tepania Colony High School,
P.O.-R.K. Pur, Udaipur, P.S.- R.K. Pur,
District- Gomati, Tripura.
2. The State of Tripura.
......Respondent(s)
For Appellant(s) : Mr. Subham Majumder, Adv.
For Respondent(s) : Mr. Raju Datta, P.P.
Date of Hearing &
Judgment and Order : 10.02.2025
Whether fit for
Reporting : NO
HON'BLE MR. JUSTICE BISWAJIT PALIT
Judgment & Order(Oral)
This appeal is preferred challenging the order
dated 05.07.2024 delivered by Learned J.M. 1st Class, Court
No.3, Udaipur, Gomati Tripura in connection with case
No.CR(NI) 54 of 2021. By the said order Learned Court
below has dismissed the case for non-prosecution.
02. Heard Learned Counsel, Mr. Subham Majumder
appearing for the appellant and also heard Learned P.P., Mr.
R. Datta appearing on behalf of the State-respondent. None
appeared on behalf of the private-respondent.
03. Taking part in the hearing, Learned Counsel for
the appellant drawn the attention of the Court that the
present appellant filed one case under Section 138 of N.I.
Act which was pending for disposal before the Learned Court
below. In the said case, the appellant as complainant
produced two witnesses including the complainant himself
and the case was posted for examination of the private-
respondent-accused under Section 313 of Cr.P.C. On
11.05.2023 the respondent-accused was absent and sought
adjournment and the case was adjourned and further date
was fixed on 24.05.2023 for examination of accused under
Section 313 of Cr.P.C. Again on 24.05.2023 the case was
further adjourned fixing the date on 30.06.2023 for
examination of the private-respondent under Section 313 of
Cr.P.C. But on 30.06.2023 the private-respondent-accused
was absent and the case was adjourned to 02.08.2023 for
examination of respondent-accused under Section 313 of
Cr.P.C. But on 02.08.2023 the respondent-accused again
sought for time but the Learned Court below rejected the
application for adjournment and issued bailable warrant of
arrest against the said private-respondent. On 08.12.2023
the complainant submitted requisite for issuing bailable
warrant of arrest against the respondent-accused and the
case was fixed for ER/appearance on 24.01.2024. But as
there was no execution report of the warrant, so, Learned
Court below issued reminder to the Officer-in-charge of the
concerned police station for execution of bailable warrant of
arrest but the warrant was not executed and the case was
fixed on 05.07.2024 for E/R and on that day the appellant
was absent without any step and execution report of the
bailable warrant was also not returned back from the
concerned police station. But the Learned Court below by
order dated 05.07.2024 dismissed the case for non-
prosecution which was totally illegal and not warranted by
law. So, Learned Counsel for the appellant submitted before
the Court to set aside the said order and to remand back the
matter to the Learned Court below for completion of trial of
the case, otherwise, the appellant would be prejudiced.
He further drawn the attention of the Court
referring the provision of Section 256 of Cr.P.C. which
provides as under:
Section 256 of Cr.P.C.:-
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.
In addition to that he also referred another
citation of Hon'ble Supreme Court of India in V. K. Bhat vs.
G. Ravi Kishore & Anr dated 29.02.2016 reported in
(2016) 13 SCC 243 wherein in para No.10 Hon'ble the
Apex Court observed as under:
"10. After hearing the learned counsel for
the parties, we find that there is some force
in the submissions made by the learned
counsel appearing for the appellant and we
hold, in the facts of the case, that dismissal
of the complaint for non-appearance of the
complainant amounts to acquittal as
contemplated in Section 256 of the Code of
Criminal Procedure."
Referring the same, Learned Counsel for the
appellant submitted that the dismissal of complaint for non-
appearance amounts to acquittal as contemplated under
Section 256 of Cr.P.C. and since in the case at hand that was
a private complaint filed by the appellant under the provision
of Section 138 of N.I. Act, so, in view of the principle of law
laid down by the Hon'ble Apex Court in the aforenoted case,
this Court has got the jurisdiction to grant Special Leave to
Appeal under Section 378(4) of Cr.P.C.
04. On the other hand, Learned P.P. fairly submitted
that the order passed by Learned Court below was not in-
accordance-with law and he fairly submitted to interfere with
the order and to remand back the matter for completion of
trial, since the case was pending for examination of the
respondent-accused under Section 313 of Cr.P.C.
05. This Court has already granted Special Leave to
Appeal. I have also heard both the sides at length and
perused the relevant copies of orders annexed with the
memo of appeal including the last order dated 05.07.2024. It
appears that since the case was posted for examination of
the respondent-accused under Section 313 of Cr.P.C. after
closure evidence of the complainant and Learned Court
below issued bailable warrant of arrest against the accused
for his non-appearance. So, till execution of the bailable
warrant of arrest issued against the respondent-accused,
there was no scope on the part of the Learned Court below
to dismiss the case for non-prosecution. Because although
the complaint was filed by the appellant, but at that stage it
was not mandatory on the part of the complainant to remain
present before the Court. Once the warrant could execute
and thereafter, the petitioner could remain absent, in that
case there was scope on the part of the Learned Court below
to pass appropriate order. But here in the given case, since
the evidence of the complainant was closed and the case was
posted for examination of the respondent-accused under
Section 313 of Cr.P.C., so, there was ample scope on the
part of the Learned Court below to deliver a judgment after
execution of the warrant of arrest, but the Learned Court
below without adopting the legal procedure has decided to
dismiss the case for non-prosecution which in my considered
view was not passed in-accordance-with law and it appears
to this Court that by the said order miscarriage of justice has
been caused to the appellant-complainant of this case.
06. Hon'ble the Supreme Court of India in BLS
Infrastructure Limited vs. Rajwant Singh & Ors. dated
01.03.2023 reported in (2023) 4 SCC 326 wherein Hon'ble
the Apex Court in para No.14 observed as under:
"14. In Associated Cement Co.: Associated
Cement Co. Ltd. v. Vasumathi
Chandrasekhar, (2008) 4 SCC 67, the
purpose of inserting a provision like Section
256 of the Code was discussed and in light
thereof, in para 16, it was observed as
under: (SCC p. 693)
"16. What was the purpose of
including a provision like Section 247
in the old Code (or Section 256 in the
new Code). It affords some deterrence
against dilatory tactics on the part of a
complainant who set the law in motion
through his complaint. An accused
who is per force to attend the court on
all posting days can be put to much
harassment by a complainant if he
does not turn up to the court on
occasions when his presence is
necessary. The section, therefore,
affords protection to an accused
against such tactics of the
complainant. But that does not mean if
the complainant is absent, the court
has a duty to acquit the accused in
invitum."
After observing as above, it was held that
where the complainant has already been
examined as a witness in the case, it would
not be appropriate for the Court to pass an
order of acquittal merely on non-
appearance of the complainant. Thus, the
order of acquittal was set aside and it was
directed that the prosecution would
proceed from the stage where it reached
before the order of acquittal was passed."
From the above, it appears that since in this case
the appellant-complainant has been examined along with his
one witness and the case was posted for examination of
accused and due to non-appearance, Learned Trial Court
below issued bailable warrant of arrest against him. But as
the complainant could not appear on the date fixed for any
reason, for that the Learned Court below till execution of the
warrant of arrest of the respondent-accused and after
exhausting the processes had no scope to dismiss the case
for non-prosecution which in my considered view was not in-
accordance-with law because the Learned Court below ought
to have deliver judgment in this case after examination of
the accused under Section 313 of Cr.P.C. and also after
hearing argument of the case.
07. In view of the above, it appears to this Court that
the Learned Court below committed error in dismissing the
case for non-prosecution by the said order dated
05.07.2024. At the same time it is also desired that since the
complainant has filed the case seeking redress, so, the
complainant should remain present on the date of hearing
either by appearing before the Court himself or in case of
any inconvenience, he may approach to the Court through
his engaged Learned Counsel seeking his personal
appearance dispensed with.
08. In the result, the appeal is allowed. The order
dated 05.07.2024 delivered by Learned J.M. 1st Class, Court
No.3, Udaipur, Gomati Tripura in connection with case
No.CR(NI) 54 of 2021 is hereby set aside and the case be
restored to its original file by the Learned Court below. The
appellant-complainant shall appear before the Learned Court
below on 28.02.2025 and on that day the Learned Court
below shall accept the attendance of the complainant and
thereafter shall take appropriate legal steps to ensure the
presence of the respondent-accused in connection with the
case and after that, Learned Court below shall proceed to
dispose of the case as per law.
With this observation the appeal stands disposed
of. Send down a copy of this order to the Court of Learned
J.M. 1st Class, Court No.3, Udaipur, Gomati Tripura in
connection with case No.CR(NI) 54 of 2021 under Section
138 of N.I. Act. Also furnish a copy of this order to the
Learned Counsel for the appellant-complainant for
information and necessary action as ordered.
Send down the LCR along with a copy of the
judgment/order.
Pending application(s), if any, is accordingly
stands disposed of.
With this observation, this appeal is disposed of.
JUDGE
MOUMITA MOUMITA DATTA
DATTA +05'30'
Purnita
