Distinguish between the dismissal of a complaint discharge and acquittal what are the remedies available in each of these cases?

Question: Distinguish between the dismissal of a complaint discharge and acquittal what are the remedies available in each of these cases? [R.J.S. 1989, UPHJS 2012]

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Answer

A distinction has to be made between a complaint dismissed prior to the summoning of the accused and that dismissed after summoning. Dismissal after summoning and in the presence of the accused results in acquittal. Against such order, only an appeal can be filed and not revision as clarified by the High Court of Delhi in the case of Kalpana Tyagi v. Sneh Lata Sharma, 2003 Cr LJ 3395 (Del).

Section 256 of the CrPC deal with the effect of non-appearance or death of the complainant. This section applies where the complainant does not appear in a summons case. Section 249 is the corresponding section in a warrant case.

The exercise of power under section 256 is subject to two constraints:

• “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.

As observed in CK Sivaraman Achari v. DK Agarwal, 1978 Cr LJ 1376 there are three courses 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. An order under this section acquitting an accused is a final order of acquittal which operates as a bar under section 300 to the trial of the accused of the same offence. The provision in section 300 that a fresh trial will not be barred unless the accused has in the first case been “tried” does not limit the effect of an order of acquittal under this section.

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