The Kerala High Court recently ruled that the courts should not pass an order of acquittal under Section 256 of the Code of Criminal Procedure in a suo motu manner merely because the complainant is absent from the hearing.
“Courts should not ordinarily proceed to pass an order of acquittal in a suo motu manner merely by the absence of the complainant from court on a particular date. “There must be an application of reason to the question of whether an order of acquittal should be passed under Section 256 of the Penal Code,” Justice Bishu Kurian Thomas observed.
Article 256 of the Criminal Procedure Code gives the judge the power to acquit the accused if the complainant does not appear before the court.
The court noted that although the power is available, it does not mean that in the absence of the complainant, the court must acquit the accused without any other option.
The court made this observation while considering a request to appeal the acquittal of one of the accused due to the complainant’s failure to appear when the case was filed to obtain evidence.
The complaint was based on the fact that the check issued by the accused bounced when presented. When the case was presented for evidence, the complainant did not appear or be represented. Hence, the judge acquitted the accused under Article 256 BC
The court noted that the provision in Section 256 of the Code of Criminal Procedure also provides that the judge is given discretion to postpone the case to another day.
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“Article 256 of the Criminal Code grants the judge the power to acquit the accused for not appearing on the appointed day of the hearing. The ruling also provides for the discretion of the judge to postpone the case to another day. The condition of the said ruling also provides for the granting of postponement in the case where the judge deems that the personal appearance of the complainant was not necessary on the said date.”
The court held that the judge must take into account the surrounding circumstances, including whether the case was tried in good faith or in good faith. The court observed that there should be an application of mind to the question of whether an order of acquittal should be issued under Section 256 of the Penal Code.
The court noted that since the complainant had been carefully following the case, the judge’s acquittal order was liable to be set aside.
“The judgment dated 01.09.2023 in ST Order No. 26 of 2023 on the files of the Third Chief Judicial Magistrate, Aluva is hereby set aside and the case is remanded for de novo consideration. The parties will appear before the Third Chief Judicial Magistrate, Aluva, on 21.11.2025,” the court directed.
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(tags for translation) kerala high court
