1 CGHC010321672026 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRMP No. 2328 of 2026 1 - Sahdev Chandrakar S/o Shri Bodhiram Chandrakar, Aged About 38 Years R/o Village And Post Mahli, P. S. Kunda Tahsil Kunda, District - Kabirdham (C.G.) ... Petitioner(s) versus 1 - Bholaram S/o Shri Sundar Kurmi Aged About 30 Years R/o Village And Post Makri P. S. Kunda Tahsil Kunda District Kabirdham (C.G.) ... Respondent(s) (Cause title taken from CIS) For Petitioner(s) : Mr. F.S. Khare, Advocate Hon’ble Shri Justice Ravindra Kumar Agrawal, J Order on Board 29.09.2026 1. Heard. 2. This is an application for grant of leave to file an appeal against acquittal under Section 419(4) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short, “the BNSS”) against the impugned order dated 06.05.2026 passed by learned Judicial Magistrate First Class, Pandariya, District Kabirdham, in Criminal Case No. 67/2024. The applicant was the complainant before the learned trial Court, where he SAGRIKA AGRAWAL Digitally signed by SAGRIKA AGRAWAL Date: 2026.10.06 10:09:04 +0530 2 was prosecuting a complaint under Section 138 of the Negotiable Instruments Act, 1881. The said complaint case came to be dismissed for want of prosecution vide order dated 06.05.2026, by invoking the provisions contained in Section 279 of the BNSS, which resulted in acquittal of the respondent/accused. Against the said order, the applicant has preferred the present appeal along with an application seeking leave to appeal. 3. Learned counsel for the applicant would submit that the learned trial Court, while invoking Section 279 of the BNSS, has acquitted the respondent/accused for non-appearance of the complainant. Such an order amounts to an order of acquittal and, therefore, the applicant is entitled to challenge the same by way of an appeal against acquittal. It is submitted that the applicant, being the complainant/victim, has a statutory right to prefer an appeal against the order of acquittal and, therefore, the impugned order may be set aside, and the complaint case may be restored to its original number for adjudication on merits. 4. I have heard learned counsel for the applicant and perused the material available on record. 5. From perusal of the order sheet dated 06.05.2026, it appears that the complaint case instituted by the applicant under Section 138 of the Negotiable Instruments Act, 1881, was dismissed by the learned Judicial Magistrate First Class, Pandariya, District Kabirdham, for want of prosecution by invoking Section 279 of the BNSS It further appears that the case was fixed for recording of the complainant's evidence and a last opportunity had been granted to the complainant for leading his evidence. However, on the said date, neither the complainant appeared before the learned trial Court nor was his evidence 3 produced, resulting in dismissal of the complaint case under Section 279 of the BNSS. 6. At this stage, it is apposite to refer to Section 279 of the BNSS, which provides for acquittal of the accused in the event of non-appearance of the complainant, subject to the discretion of the Magistrate to adjourn the hearing for reasons to be recorded. The relevant provision reads as under:— “279. 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, after giving thirty days' time to the complainant to be present, 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 an advocate 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.” 7. The question, however, which arises for consideration in the present case is not as to whether an order passed under Section 279 of the BNSS results in acquittal of the accused, but as to the appropriate statutory forum and procedure for challenging such order by the complainant/victim under the BNSS. 4 8. The Hon'ble Supreme Court, in Subhas Chandra Sarkar v. State of West Bengal & Ors., 2026 SCC OnLine SC 1997, has recently considered the interplay between Sections 413, 415 and 419 of the BNSS in the context of an appeal preferred by a victim against an order of acquittal passed by a Judicial Magistrate. The Hon'ble Supreme Court has held that the proviso to Section 413 of the BNSS specifically confers a right upon the victim to prefer an appeal against an order of acquittal and that such appeal has to be filed before the Court to which an appeal ordinarily lies against an order of conviction passed by such Court. The Hon’ble Supreme Court has further clarified that Section 419 of the BNSS, which deals with appeals against acquittal, would not govern an appeal preferred by a victim under the proviso to Section 413. 9. In the said judgment, the Hon'ble Supreme Court has specifically observed that under Section 415(3) of the BNSS, an appeal against a conviction in a trial held by a Magistrate of the First Class or Second Class lies before the Court of Session. Consequently, by virtue of the proviso to Section 413 of the BNSS, an appeal by a victim against an order of acquittal passed by a Magistrate is also required to be preferred before the Court of Session. The Supreme Court accordingly upheld the order of the High Court directing the victim to approach the jurisdictional Sessions Court. 10. Applying the aforesaid principle to the facts of the present case, the order dated 06.05.2026 has been passed by the learned Judicial Magistrate First Class, Pandariya, District Kabirdham, resulting in acquittal of the respondent/accused. The applicant, being the complainant/victim, may challenge the said order by invoking the right 5 of appeal available to a victim under the proviso to Section 413 of the BNSS. However, such appeal is not maintainable before this Court under Section 419(4) of the BNSS. In view of the law laid down by the Hon'ble Supreme Court in Subhas Chandra Sarkar (supra), the appeal against the order of acquittal passed by the learned Judicial Magistrate First Class is required to be preferred before the jurisdictional Court of Session. 11. Consequently, without expressing any opinion on the merits of the order dated 06.05.2026 or on the justification for dismissal of the complaint under Section 279 of the BNSS, the present application seeking leave to appeal under Section 419(4) of the BNSS is not maintainable before this Court and is accordingly dismissed, with liberty to the applicant to avail the remedy available to him in accordance with law before the competent Court. Sd/- (Ravindra Kumar Agrawal) Judge sagrika