Court Must Use Its Judicial Discretion & Record

Findings to Support Case Dismissal: Calcutta High Court

The Calcutta High Court recently set aside an order acquitting an accused under Section 256 of
the CrPC for a complaint filed under Section 138 of the Negotiable Instrument Act, stating that a
Magistrate cannot pass such an order without forming a judicial opinion simply because the
complainant did not appear.

Section 256 stipulates that if the complainant fails to appear on the appointed day after the
summons has been issued on the complaint, the Magistrate shall acquit the accused also the
magistrate has to give reason for not passing the acquittal order.
The complainant and the accused were both present on the day of the recording of evidence in
this case, but the magistrate Suo Moto adjudicated the matter on March 13, 2018. The
complainant was absent without taking any action on the above-mentioned day, and the
magistrate ordered him to make a show reason for non-prosecution, setting the deadline for the
complainant to present his show cause on April 16, 2018. The complainant again absents on the
date Magistrate acquitted the accused under Section 256 of the CrPC

The Court pointed out that the Magistrate who dismissed the case did so without formulating an
opinion that there was no sufficient basis to postpone the matter's hearing to a later date. The
Court emphasised that the contested decree lacks judicial discretion.