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Journalism of Courage
Kerala HC Judgement 2025: The Kerala High Court has recently held that courts should not pass an order of acquittal under Section 256 of Criminal Procedure Code in an automatic manner merely on the complainant’s absence from hearing.
“Courts should not normally proceed to pass an order of acquittal in an automatic manner merely on the complainant’s absence from the court on a particular date. There should be an application of mind to the question as to whether an order of acquittal under section 256 Cr.P.C should be passed”, Justice Bechu Kurian Thomas observed.
Section 256 of CrPC grants power to the magistrate to acquit an accused on non-appearance of the complainant before the court.
The court observed that though the power is available, it does not mean that, if the complainant is absent, the court must acquit the accused without any other option.
The court made this observation while dealing with a plea challenging the acquittal of an accused due to the failure of the complainant to appear when the case was posted for evidence.
The complaint was filed alleging that the cheque issued by the accused was dishonoured on presentation. When the case was posted for evidence, the complainant neither appeared nor was he represented. Hence, the magistrate acquitted the accused under Section 256 Cr.P.C.
The court observed that the provision under Section 256 of CrPC also provides for a discretion to the Magistrate to adjourn the case to some other day.
“Section 256 Cr.P.C confers power upon the Magistrate to acquit the accused on his failure to appear on the day fixed for hearing. The provision also provides for a discretion to the Magistrate to adjourn the case to some other day. The proviso to the said provision also contemplates the grant of an adjournment in a situation where the Magistrate is of the opinion that the personal appearance of the complainant was not necessary on the said date”, the court noted.
The court held that the magistrate must consider the surrounding circumstances including whether the case has been prosecuted with bona fides or in good faith. The court observed that there should be an application of mind to the question as to whether an order of acquittal under section 256 Cr.P.C should be passed.
The court noted that since the complainant was prosecuting the matter with diligence, the acquittal order passed by the magistrate is liable to be set aside.
“The judgment dated 01.09.2023 in S.T. No.26 of 2023 on the files of the Chief Judicial Magistrate Court-III, Aluva, is hereby set aside and the case is remanded for fresh consideration. The parties shall appear before the Chief Judicial Magistrate Court-III, Aluva, on 21.11.2025”, the court directed.
