What is the effect of non-appearance or death of complainant in a trial of summon cases by Magistrate?

Question: What is the effect of non-appearance or death of complainant in a trial of summon cases by Magistrate? [UPPCS (J) 1984, UP (J) 2012]

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Answer

In the case where the complainant does not appear before the court on the due date, the court is empowered to acquit the accused unless there is any chance to adjourn the case.

According to section 256 on the date fixed for the appearance of the accused non-existence of the complainant will empower the court to acquit the accused unless the court has the reason to adjourn the case to some other day. This section is also applicable in case when the complainant is dead or the legal representative of that person does not appear before the court on the due date.

This section applies where the complainant does not appear in a summons case. The exercise of power under section 256 is subject to two constraints [Priyadarshini Cements Ltd v. the State of AP, 2002 Cr LJ 4465 (AP)]:

• “Firstly, if the court thinks that in a situation it is proper to adjourn the hearing, then the Magistrate shall not acquit the accused.
• Secondly, when the Magistrate considers that personal attendance of the complainant is not necessary on that day, he has the power to dispense with his attendance and proceed with the case.”

On default of the complainant’s appearance, the Magistrate has discretion either to dismiss the complaint and acquit the accused or to adjourn the hearing. The powers given under this section must be exercised reasonably and only in a case where the complainant has failed to appear without any just cause.

Three courses are open to the Magistrate where the complainant is absent on the date of the hearing:

• to acquit the accused; or
• to adjourn the case for a future date; or
• to dispense with the attendance of the complainant and proceed with the case.

It is the sole discretion of the Court as to the course to be followed which must be judicially exercised.

Section 256(1) is also applicable in the case of the death of the complainant. In case the representative of the dead complainant does not appear for 15 days where the defendant appeared, the defendant can be acquitted held by the Supreme Court. In A.S. Ramakrishna v. S Rami Reddy (2008 5 SCC 535) case, the complaint died during the trial and a large number of dates were fixed for the hearing but the legal representative of the dead person for absent for about 15 dates continuously but the accused was attending the hearing. The magistrate acquitted the accused as per this section.

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