Summary
A complaint under Section 304A IPC alleging medical negligence was dismissed for default by the Magistrate during the Covid period while the High Court's stay of the proceedings was in force; a High Court judge then observed that the proper course under Section 256 CrPC was an acquittal, and when the Sessions Judge in revision restored the complaint, another High Court judge quashed that order as sitting in appeal over the earlier observation. The Supreme Court held that an acquittal under Section 256 CrPC follows only where the complainant is absent on a day appointed for the appearance of the accused (or an adjourned hearing) and the accused are present, not on a date fixed for showing cause; that the dismissal was itself without jurisdiction given the stay and the High Court's Covid SoP; and restored the complaint and the accused's pending quashing petition.
Issues
- Whether the Magistrate could dismiss the complaint for default on 16.04.2021 while the High Court's stay of the proceedings and its Covid-period Standard Operating Procedure directing that matters not ordinarily be dismissed for default were in force.
- Whether an acquittal under Section 256 CrPC follows from the complainant's absence on a date fixed only for showing cause against dismissal, when the accused were themselves not present.
- Whether the High Court could quash the Sessions Judge's revisional order restoring the complaint on the ground that it sat in appeal over an earlier observation of the High Court on the interpretation of Section 256 CrPC.
Provisions considered
- Section 256, Code of Criminal Procedure, 1973On the day appointed for the appearance of the accused, or any subsequent day to which the hearing is adjourned, the complainant's absence requires the Magistrate to acquit the accused unless he adjourns. The Court read 'any day subsequent thereto' with reference to the day appointed for the accused's appearance: a date fixed for some other purpose not intrinsically connected with progress of the lis (bringing an order from a superior court, showing cause, producing material) does not attract acquittal, and an acquittal is not to be read into an order dismissing a complaint for default unless clearly recorded. (¶¶ 18, 19, 20, 21)
- Article 142, Constitution of IndiaInvoked to set aside the High Court's order of 09.09.2021 disposing of the accused's quashing petition (CRR 2327 of 2018), which had been disposed of only because the complaint stood dismissed for default, and to restore that petition to the High Court's file. (¶ 24)
Held
- Covid restrictions being in place, paragraph 12 of the High Court's SoP notified on 27.11.2020 required that matters not ordinarily be dismissed for default except on cogent reasons recording deliberate avoidance or recalcitrance of the absent party; the Magistrate recorded no such satisfaction. Further, the proceedings having been stayed by the High Court by interim orders extended from time to time, the Magistrate lacked jurisdiction to pass any order on the complaint until the stay was lifted. The dismissal for default on 16.04.2021 was therefore illegal, and by interfering with the Sessions Judge's revisional order the High Court validated that illegal order and closed the complaint without just reason. (¶¶ 15, 20)
- What matters for invoking Section 256 CrPC is the purpose for which the case is fixed. If the date is appointed not for the appearance of the accused but for another purpose, acquittal does not necessarily follow from the complainant's absence; the words 'on any day subsequent thereto' must be understood with reference to 'the day appointed for the appearance of the accused'. Where a date is fixed, for instance, for bringing an order from a superior court, for showing cause why the complaint should not be dismissed for continued absence, or for producing material not intrinsically connected with progress of the lis, the complaint may be dismissed on the complainant's absence but the acquittal provision is not attracted unless it is the date appointed for the accused's appearance and they appear personally or through an advocate. Without the Magistrate recording a clear acquittal along with the dismissal, acquittal need not be read into every such order of dismissal. (¶¶ 18, 19)
- 16.04.2021 was not a day appointed for the respondents' appearance but the date on which the appellant was to show cause, and the respondents too were absent; the jurisdictional facts for an acquittal under Section 256 were not satisfied. At best the Magistrate could have dismissed the complaint for default, which he could not do in view of the stay and the SoP. (¶ 20)
- The earlier High Court judge, instead of merely recording that nothing survived in the accused's quashing petition, made an unwarranted and patently incorrect observation on Section 256; the judge hearing the later petition then treated that observation as the final word binding on all, ignored that the complainant was entitled to and did pursue the revision remedy, and proceeded on the factual misconception that the complainant had filed the earlier petition when it was the accused's. It was absolutely incorrect to hold that the Sessions Judge sat in appeal over the High Court: the revision was held maintainable and sufficient reasons were given, on a correct reading of Section 256, why the complaint should not have been dismissed. Interference was not called for. (¶¶ 16, 17, 21, 22)
Result
Appeal allowed to the extent indicated; the High Court's order dated 15.07.2024 in CRR 359 of 2023 set aside and Complaint Case No. 2 of 2017 revived; under Article 142 the order dated 09.09.2021 disposing of CRR 2327 of 2018 also set aside and that petition restored, to be decided first, preferably within six months, parties to appear before the roster bench on 17.04.2025, the complaint then to proceed according to its result; merits not examined; Registry to inform the Registrar General; pending applications disposed of.