Rama Kant Gupta vs State of U.P. and Another

R.K. Singh, J.—Heard Sri O.P. Singh, learned Counsel for the revisionist and Sri S.M. Dayal and the learned A.G.A.

The impugned judgment passed by X Vth Addl. Sessions Judge, Kanpur, dated 4.7.84 in Criminal Revision No. 310/M/82 and the order passed by Metropolitan, Nazirabad, Kanpur dated 27.9.82 in Criminal Case No. 389/82 has been carefully perused.

The learned Addl. Sessions Judge has allowed the revision petition on the ground that the learned Magistrate has power u/s 256, Code of Criminal Procedure to adjourn the case in the absence of the complainant, if he feels that personal attendance with the complainant is not necessary.

The learned Addl. Sessions Judge has not noted any illegality in the impugned order but he has allowed the revision petition simply because the learned Magistrate has not noted in his order dated 27.9.82 if personal attendance of the complainant was necessary on that date or not. This view of the learned Addl. Sessions Judge is clearly against the provisions of Section 256, Code of Criminal Procedure which empowers the Magistrate to dismiss the complaint in absence of the complainant on the date fixed in the complaint for appearance of the accused if the accused appears or on any later date to which the hearing is adjourned. The law does not expect any reason to be noted by the learned Magistrate for passing order of dismissal of complaint except to note that the complainant is absent. The reason for adjournment of the case in absence of the complainant has of course to be given but for dismissal of the complaint does not require any reason to be given by the Court. In the present case, the learned Magistrate has dismissed the complaint and has acquitted the accused persons u/s 256, Code of Criminal Procedure which section authorised the Magistrate to pass such orders. In this background, impugned order passed by learned Addl. Sessions Judge, does not appear sound in law. The revision petition is accordingly, allowed and the impugned order dated 28.9.84 which the operation of the order has remained up till now stayed, is hereby set aside.