9911796707
TMI Blog2023 (3) TMI 119X X X X Extracts X X X X X X X X Extracts X X X X ..... o.621744/16, 1718/16, 1276/16, 1277/16, 621743/16, 621742/16, 12742/17 and 12744/17 for non-appearance of the complainant (the appellant herein). 3. The short question that arises for our consideration in these appeals is whether in the facts of the case, the learned Magistrate was justified in dismissing the criminal complaints for non-appearance of the complainant even though the statement of the complainant had been recorded and, vide order of the learned Magistrate dated 26.10.2017, the complainant's evidence was closed with a direction to list the matter for recording of defence evidence as also for consideration of application under Section 311 of the Code of Criminal Procedure, 1973 (for short "the Code") filed by the complainant. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore the Delhi High Court through eight separate petitions which came to be dismissed by a common order dated 07.11.2019 impugned in these appeals. 7. We have heard Shri Maninder Singh, learned Senior Advocate appearing for the appellant; and Mr. Samrat Nigam, learned Advocate for the respondents. 8. The learned counsel for the appellant submitted that the learned Magistrate while dismissing the complaints for nonprosecution lost sight of the proviso to sub-section (1) of Section 256 of the Code. It is submitted that the said proviso enables the Magistrate to dispense with the attendance of the complainant and proceed with the case where the complainant is represented by a pleader or by the officer conducting the prosecution or where the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of the accused or any day subsequent thereto, to which the hearing may be adjourned, the complainant does not appear. It is submitted that since it is not in dispute that the complainant had filed an application under section 311 of the Code and the complainant remained absent from the proceedings, the learned Magistrate was justified in dismissing the complaint(s) for non-appearance of the complainant. It has also been urged that if there is any technical defect in dismissing the complaint(s) for non-appearance of the complainant, the same be treated as an order of acquittal as per provisions of sub-section (1) of Section 256 of the Code. 10. Having noticed the rival submissions, before we proceed further, it would be useful to notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dy examined his witnesses, this Court observed as follows: "12. Section 256 of the Code provides for disposal of a complaint in default. It entails in acquittal. But, the question which arises for consideration is as to whether the said provision could have been resorted to in the facts of the case as the witnesses on behalf of the complainant have already been examined. 13. The date was fixed for examining the defence witnesses. The appellant could have examined witnesses, if he wanted to do the same. In that case, the appearance of the complainant was not necessary. It was for her to cross-examine the witnesses examined on behalf of the defence." After observing as above, in paragraph 15, it was held thus: "15. ... when the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erment in the Special Leave Petition(s) that the appellant had led its evidence in the case and thereafter had moved an application under Section 311 of the Code to summon and examine further witnesses. In Paragraph 5(u), it is stated that the trial court as well as the High Court did not take into consideration that the complainant's cross-examination had been over in Complaint Case Nos.621742/16, 621743/16 and 621744/16, and no cross-examination was sought in other cases. Rather, CW-1's cross-examination in the above three complaint cases was adopted. There appears no specific denial of the aforesaid factual position. However, we find that neither the High Court nor the learned Magistrate has taken notice of the aforesaid position. Both t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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