The Metropolitan Magistrate had dismissed the DVC due to absence of the complainant on 1 date and acquitted the husband under 256 CrPC with this reasoning.
From Para 7,
Admittedly, on 19.10.2010, due to non-appearance of the complainant/appellant herein, complaint was dismissed and the accused were acquitted, against the same only, the present appeal has been preferred. While perusing the order, the learned XV Metropolitan Magistrate has specifically mentioned as follows:
“Complainant absent. No representation. Respondent 1 present. Respondents 2 & 3 are absent. Petition u/s 317 Cr.P.C. filed allowed. Direction issued by the Fast Track Court to dispose within the stipulated time. Even after specific direction to appear & proceed with the case complainant is absent. No representation. Hence complaint is dismissed. Accused are acquitted.
The Hon’ble High Court of Madras has set aside the acquittal order with this reasoning picked from Hon’ble Supreme Court judgment from 2004. There is a later judgment from Hon’ble Supreme Court in 2008 on same subject here.
From Para 8,
K.Niranjani Vs R.T.Dinesh on 25 June, 2012At this juncture, it is appropriate to consider the decision relied upon by the learned counsel for the appellant reported in 2004 (1) CTC 689 (R.Sekar v. S.Rajendran) in para-4, it reads as follows:
“4.The Supreme Court in the case in Associated Cement Co. Ltd. Vs. Keshjvanand 1998 Crl.L.R. 856 has held as follows:
“Two constraints are imposed on the Court for exercising the power under section 256. First is, if the Court thinks that in a situation it is proper to adjourn the hearing, then the Magistrate shall not acquit the accused. Second is, when the Magistrate considers that personal attendance of the complainant is not necessary on that day, the Magistrate has the power to dispense with his attendance and proceed with the case. When the Court notices that the complainant is absent on a particular day, the Court must consider whether personal attendance of the complainant is essential on that day for the progress of the case and also whether the situation does not justify the case being adjourned to another date due to any other reason. If the situation does not justify the case being adjourned the Court is free to dismiss the complaint and acquit the accused. But if the presence of the complainant on that date was quite unnecessary, then resorting to the step of axing down the complaint may not be proper exercise of power envisaged in the Section. The discretion must, therefore, be exercised judicially and fairly without impairing the cause of administration of criminal justice.“
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