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2023 (7) TMI 759 - BOMBAY HIGH COURTDismissal of complaint for non-prosecution / non appearance before the court - Exercise of discretion by Trial Court under the provisions of Section 256 of the Code of Criminal Procedure - complainant has not remained present on two dates at the stage of recording the evidence - HELD THAT:- The learned Magistrate cannot simply say that the steps are not taken since long. Now, whether two day’s absence is sufficient for dismissal?. There is no straitjacket formula. It depends upon the facts. In particular case even six dates or more than that can be presumed to be sufficient for not dismissing the complaint. It is pure question of fact. Learned Advocate Mr. Dave (respondent) is right that now-a-days you can see roznama online. He is right that the accused is not required to attend the Court and to reproduce record. However, two days absence cannot be said to be justifiable ground for dismissing the complaint. It is not job of the Court to see that the matters are dismissed just because either of party is not remaining present. The job of the Court is to see that justice is done by giving sufficient opportunities to the parties. Always there is rule of audi alteram partem. In this case, it is felt that the learned Magistrate has hastily dismissed the complaint. In fact, one option was available to learned Magistrate that is to say, while adjourning the matter he could have regulated conduct of the complainant, even by passing certain strict orders, that is to say, even by imposing cost. Learned Magistrate has simply considered absence of complainant only on two dates and dismissed the complaint. The Respondent is justified in opposing the Appeal, on the basis of facts and circumstances. When the rights of both parties are balanced, the matter needs to be restored. Leave to prefer an Appeal is granted - Matter restored back.
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