Court No. - 78
Case :- GOVERNMENT APPEAL No. - 1181 of 1981 Appellant :- State Respondent :- S.K. Bhattacharya Counsel for Appellant :- A.G.A.
Counsel for Respondent :- Diwakar Mishra
Hon'ble Ajit Singh,J.
Heard learned AGA on behalf of the State appellant. No one has appeared on behalf of the opposite party.
From perusal of the file of this appeal, it reveals that this is an appeal filed by the State Government under Section 378 (3) Cr.P.C. against the judgment and order dated 21.11.1980 passed by the learned Chief Judicial Magistrate, Mathura in Criminal Case No. 1143 of 1979 dismissing the the complaint under Section 256 Cr.P.C. on the ground of absence observing that neither the complainant nor his pairokar was present in Court.
After filing of the appeal by the State challenging the order dated 21.11.1980, the lower court record was summoned in this matter and the office has submitted that the lower court record is not traceable nor it can be reconstructed, which also seems fortified with the report dated 19.05.2018 of Chief Judicial Magistrate, Mathura available on the record of this appeal.
On the other hand, this Court finds no illegality or infirmity in the impugned order dated 21.11.1980 which was passed by the learned Court below straight way following the provisions of Section 256 Cr.P.C, which reads as under:-
"256. Non- appearance or death of complainant.
(1) If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day: Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case.
(2) The provisions of sub- section (1) shall, so far as may be, apply also to cases where the non- appearance of the complainant is due to his death."
The learned AGA appearing on behalf of the State appellant shows his inability to point out any illegality or infirmity in the impugned order in absence of the lower court record, which could not be traced out or reconstructed in view of the aforesaid report of the concerned Chief Judicial Magistrate.
Looking to the scenario and nature of this case that it was a petty offence and, at this stage of the matter, neither lower court record of this case is available nor there is any illegality or infirmity committed by the learned court below while passing the order impugned order under Section 256 Cr.P.C., no interference is required under Section 378 (3) Cr.P.C. by this Court. The appeal is liable to be dismissed.
Accordingly, it is dismissed.
Order Date :- 20.9.2021 LBY