Report No. 141

Second Recommendation

7.2.1. Recommendation regarding restoration of a criminal case for default in appearance and consequential acquittal of the accused for non-appearance.-

The Commission is further of the opinion that section 256 of the Code of Criminal Procedure, 1973, should be amended to effectuate the recommendations made in the earlier Chapter1 in the light of the need for remedying the injustice inherent in the situation as spelt out earlier. For, a meritorious complaint of a complainant cannot be allowed to be thwarted, only on the ground that the complainant was unable to remain present, even though there existed good and sufficient cause for such absence.

Ends of justice demand that such a person should not be made to suffer injustice merely because he or she cannot afford to approach the Supreme Court, which court is, in its turn, overburdened with work. The power to set aside the dismissal and restoring it will have, therefore, to be conferred on the criminal court for proceeding further in accordance with law.

1. Chapter V, supra.

7.2.2. It will also be necessary to amend the provision regarding the nature of the consequential order. If a consequential order of acquittal as presently provided is passed, the same court cannot set it aside even whilst setting aside the order of dismissal forming the basis of the order of acquittal. Only the higher court can set aside the acquittal. To overcome this problem, it will, therefore, be appropriate to provide that the order passed is in the form of "termination of proceedings" and to further provide that it will have the effect of an order of acquittal unless the order of dismissal for default is set aside in pursuance of the power to restore conferred on the court.

7.2.3. The problem can be redressed by amending section 256 to incorporate the following points:-

(a) the order to be passed under the section shall be an order terminating the proceeding having the same effect as an acquittal, unless it is set aside as provided in (b) below;

(b) such order may (after notice to the accused) be set aside if the complainant, by an application made within 30 days, shows that there was sufficient cause for the non-appearance of the complainant.