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<!DOCTYPE html PUBLIC "-//W3C//DTD XHTML 1.0 Transitional//EN" "http://www.w3.org/TR/xhtml1/DTD/xhtml1-transitional.dtd"> <html xmlns="http://www.w3.org/1999/xhtml"> <head> </head> <body> <div style="font-family:Verdana, Geneva, sans-serif; font-size:12px; text-align:justify"> <table width="800" border="0" style="border:1px solid #ccc;padding:5px;" align="center" cellpadding="6" cellspacing="0"> <tr> <td align="left" valign="top"> Supreme Court Where the complainant had already been examined as a witness in the case, Court cannot acquit accused merely on non-appearance of the complainant MANU/SC/0185/2023 - (01 Mar 2023) </td> </tr> <tr> <td align="left" valign="top">BLS Infrastructure Limited Vs. Rajwant Singh and Ors.</td> </tr> <tr> <td align="left" valign="top" style="background-color:#FDEDCE">Present appeals are directed against the judgment and order passed by Delhi High Court dismissing petition filed by the Appellant against the order learned Magistrate dismissing Criminal Complaints for non-appearance of the complainant (the Appellant). 
The short question that arises for consideration in present appeals is whether in the facts of the case, the learned Magistrate was justified in dismissing the criminal complaints for non-appearance of the complainant even though the statement of the complainant had been recorded and, vide order of the learned Magistrate, the complainant's evidence was closed with a direction to list the matter for recording of defence evidence as also for consideration of application under Section 311 of the Code of Criminal Procedure, 1973 (CrPC) filed by the complainant. 
Where the complainant had already been examined as a witness in the case, it would not be appropriate for the Court to pass an order of acquittal merely on non-appearance of the complainant. Thus, the order of acquittal was set-aside and it was directed that the prosecution would proceed from the stage where it reached before the order of acquittal was passed. 
There is a specific averment in the Petition that the Appellant had led its evidence in the case and thereafter had moved an application Under Section 311 of the CrPC to summon and examine further witnesses. The trial court as well as the High Court did not take into consideration that the complainant's cross-examination had been over in Complaint Cases, and no cross-examination was sought in other cases. There appears no specific denial of the aforesaid factual position. However, neither the High Court nor the learned Magistrate has taken notice of the aforesaid position. Both the courts below thus failed to consider whether in the facts of the case under the proviso to Sub-section (1) of Section 256, the court could proceed with the matter after dispensing with the attendance of the complainant. 
Further, if the complainant had not appeared to press the application under Section 311 of the CrPC, the learned Magistrate could have rejected the application under Section 311 of the CrPC and proceeded with the case on basis of the available evidence. The learned Magistrate was not justified in straight away dismissing the complaint and ordering acquittal of the Accused on mere non-appearance of the complainant. 
The orders of the High Court as well as of the learned Magistrate are set-aside. The proceedings shall stand restored to their original number on the file of the learned Magistrate and the prosecution shall now proceed from the stage where it was when the order of acquittal/dismissal of the complaint was passed. Appeals allowed.</td> </tr> <tr> <td align="left" valign="top" ></td> </tr> <tr> <td align="left" valign="top" >Tags : Non-appearance, Acquittal, Legality</td> </tr> <tr> <td align="left" valign="top">&nbsp;</td> </tr> <tr>  <td align="left" valign="top">Source : newsroom.manupatra.com</td> </tr> <tr> <td align="left" valign="top">&nbsp;</td> </tr> <tr> <td align="left" valign="top">Regards</td> </tr> <tr> <td align="left" valign="top">Team Manupatra</td> </tr> <tr> <td align="left" valign="top">&nbsp;</td> </tr> </table> </div> </body> </html>