1 2025:CGHC:23102 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 612 of 2024 • Ashwani Kumar Verma S/o. Shri Laxman Prasad Verma Aged About 55 Years R/o. Sanyasi Para, Raipur, District - Raipur (C.G.) Contact- 9424240755 ... Appellant versus • Shah Fish Trading Company Through- Proprietor Gopal Shah, S/o. Naresh Shah, Presently At Near Durga Mandir, Netaji Chowk Old Pipe Line Factory Road, Gorkha Colony, New Shanti Nagar, Raipur (C.G.), Permanent Resident Of- Through Gaur Shah, S/o. Shri Naresh Shah, Village- South Howrah, Jahar Jhariya Tala, Post - Howrah, District - 24 Pargana, P.G.M. North, Pin- 743263 (West Bengal) ...Respondent For Appellant : Mr. Om Kukreja, Advocate Hon'ble Shri Justice Deepak Kumar Tiwari Order On Board 11/06/2025 1. This Appeal has been filed against the impugned order dated 12.07.2022 PRIYANKA VERMA Digitally signed by PRIYANKA VERMA Date: 2025.06.13 16:42:55 +0530 2 passed by the Judicial Magistrate First Class, Raipur, Chhattisgarh in Criminal Complaint Case No.3733/2018, whereby the learned trial Court dismissed the case for want of prosecution. 2. Necessary facts of the case are that the appellant/complainant has filed a complaint case against the respondent/accused that the counsel for the appellant/complainant shifted to Bihar in the COVID pandemic, so the appellant could not get notice of the matter and even the counsel has not informed the exact date of hearing. In such circumstances, even if the case is at the initial stage, the complainant failed to appear on the date of the hearing and the respondent/accused has not even appeared in the matter, therefore, the case was dismissed for want of prosecution. Hence this Appeal. 3. Heard learned counsel for the appellant and perused the impugned judgment and other documents annexed with the Appeal carefully. 4. In the matter of Associated Cement Co. Ltd. vs. Keshvanand1 the Hon’ble Supreme Court has held that Section 256 of the Code imposes two constraints on the Court for exercising the power for dismissing the complaint and provides as under:- “17. Reading the Section in its entirety would reveal that two constraints are imposed on the court for exercising the power under the Section. The first is, if the court thinks that in a situation it is proper to adjourn the hearing then the Magistrate shall not acquit the accused. The second is, when the Magistrate considers that personal attendance of the complainant is not necessary on that day the Magistrate has the power to dispense 1 (1998) 1 SCC 687 3 with his attendance and proceed with the case. When the court notices that the complainant is absent on a particular day the court must consider whether personal attendance of the complainant is essential on that day for the progress of the case and also whether the situation does not justify the case being adjourned to another date due to any other reason. If the situation does not justify the case being adjourned the court is free to dismiss the complaint and acquit the accused. But if the presence of the complainant on that day was quite unnecessary then resorting to the step of axing down the complaint may not be a proper exercise of the power envisaged in the section. The discretion must therefore be exercised judicially and fairly without impairing the cause of administration of criminal justice.” 5. In view of the aforesaid legal provision, it is explicit that before proceeding to dismiss the complaint, in the absence of complainant, in exercise of jurisdiction under Section 256 of the CrPC, it must be considered by the Court whether the presence of the complainant is really necessary and the Court should act judicially and not capriciously as the duty has been cast on the Court to consider whether the personal attendance of the complainant is or is not necessary. The discretion vested in the Court should be exercised carefully and not hastily. An order of acquittal under Section 256 of the CrPC would bar a fresh trial and therefore, such an order is of immense significance. The order must show that the wide discretion vested in the Court had properly been exercised in accordance with law. If the facts of the present case are examined, it is explicit that the respondent/accused did not appear, and the case was fixed for his appearance. So considering the reason 4 assigned by the appellant/complainant that the counsel has been shifted to another state during the COVID pandemic, in such circumstances, the complainant was not aware of the date of the hearing, so this Court is of the view that a strong case is made out in favour of the complainant/appellant. 6. Accordingly, the impugned order is hereby set aside and the trial Court is directed to restore the original case and proceed in the matter in accordance with law. 7. Both the parties are directed to appear before the trial Court on 29.07.2025. 8. The complainant is at liberty to make suitable efforts for the presence of the respondent/accused, as even after the service, no one appeared on his behalf before this Court and the trial Court is directed to proceed in the matter in accordance with law on merits. 9. Resultantly, the Appeal is allowed. Sd/- (Deepak Kumar Tiwari) Judge Priyanka