In a complaint case, the complainant on a date fixed is absent. Counsel for the accused urged that the complaint be dismissed and the accused acquitted. Counsel for the complainant contends… therefore the case be adjourned to some other date. Decide

Question: In a complaint case, the complainant on a date fixed is absent. Counsel for the accused urged that the complaint be dismissed and the accused acquitted. Counsel for the complainant contends, however, that there was nothing to be done as summons for the doctor, for whose evidence, the date was fixed had not been issued by the office of the court despite the deposit of process fee by the complainant and therefore the case be adjourned to some other date. Decide.

Find the answer only on Legal Bites. [In a complaint case, the complainant on a date fixed is absent. Counsel for the accused urged that the complaint be dismissed and the accused acquitted. Counsel for the complainant contends… therefore the case be adjourned to some other date. Decide.]

Answer

It may be observed that the facts of the present proposition case are similar to those in the case reported in Saghir Uddin v. Mt. Munni And Ors., AIR (36) 1949 All. 428. In that case, which was filed on a complaint under Sections 494 and 498 Indian Penal Code, the trial Court, after recording the prosecution evidence, framed a charge against the accused and fixed a date for cross-examination of the prosecution witnesses. When the case was called out on the date so fixed, the complainant and his witnesses were absent, and at the request of the counsel for the complainant, the case was adjourned to another date.

On that date also, the complainant was absent and his counsel again sought an adjournment, but the Court rejected the application and refused to consider the evidence of the prosecution witnesses examined before the framing of the charges on the ground that they were not subjected to re-cross-examination and concluded that there was left no evidence against the accused and acquitted them.

On a revision filed by the complainant, a Division Bench consisting of Wanchoo and Desai JJ. held that in the trial of a warrant case after the framing of the charge, the duty of recalling the prosecution witnesses under Section 256 Code of Criminal Procedure is cast upon the Magistrate trying the case, and the complainant should not be penalized for their absence when he was not at fault. The decision of ‘Benett J. in ‘Harikishan v. Emperor’, AIR (24) 1937 All 127, was relied upon on this point.

In the present case at hand as well, the contention raised by the complainant shows that there was nothing to be done as a summons for the doctor, for whose evidence, the date was fixed had not been issued by the office of the court despite deposit of process fee by the complainant and therefore the case be adjourned to some other date. It is further observed that the duty of procuring the attendance of the witnesses cannot be laid upon the complainant’s shoulders.

Section 256 of CrPC requires that the witnesses named by the accused shall be recalled and after cross-examination and re-examination if any they shall be discharged. The provisions in this behalf of Section 256 are mandatory, and it should be considered to be the duty of the trial court to recall the prosecution witnesses. The use of the word ‘re-called’ in Section 256 contemplates resummoning of the witnesses if they were not actually present in Court or were not bound down to reappear.

The absence of the complainant or his witnesses under these circumstances should not be considered to afford an opportunity to the trial court to acquit the accused simply on the ground of the absence of the complainant and his witnesses. In the present case, the complainant had done all that was within his powers to do for procuring the attendance of his witnesses. He had paid the process lee. Their summons was duly served and the witnesses failed to appear. The complainant, therefore, was not at fault in this respect. He could not, therefore, have been penalized for his non-attendance as has been done by the trial Court.

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