IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.1662 OF 2001 (OLD NO.899/1996) Balbir Singh S/o Rishal Singh R/o Libber Hari, P.S. Manglore District Haridwar ……… Appellant Versus 1. The State 2. Chauhal Singh 3. Mahak Singh 4. Vinod 5. Kaur Pal All R/o Libbar Har, P.S. Manglore, District Haridwar ……… Respondent Dated: March 30, 2009 None is present for the appellant Sri M.A. Khan, learned Brief Holder for the State Sri Kishore Kumar, learned counsel for the respondent nos.2 to 5 HON. DHARAM VEER, J. This appeal, preferred by the appellant u/s 378 of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 26.3.1996 passed by Special Judicial Magistrate, Lower Division Eastern Yamuna Nahar, Muzafarnagar in Case No.9/1991, Balbir Singh Vs. Chauhal Singh and others. 2. None is present for the appellant. I have heard Sri M.A. Khan, learned Brief Holder for the State and Sri Kishore Kumar, learned counsel for respondent nos.2 to 5. Perused the material available on file. 3. In brief, the facts of the case are that the complainant Balbir Singh filed a complaint before the trial court u/s 70 of The Northern India Canal and Drainage Act, 1873 (hereinafter to be referred as the Act) which was dismissed by Special Judicial 2 Magistrate, Lower Division, Eastern Yamuna Nahar, Muzaffarnagar vide his order dated 26.3.1996 due to the reason that neither the complainant nor his counsel was present in the court on the date fixed. The application for exemption from the court was moved by some other person, namely, Sompal on behalf of the complainant but that application was not signed either by the complainant himself or by his counsel. Even the medical certificate regarding illness of the complainant was not filed with the said application. Due to this reason the court below did not consider that application and dismissed the complaint of the complainant and the respondent nos.2 to 5 were acquitted. Against the said order dated 26.3.1996, the appellant has preferred the present appeal before this Court. 4. Learned counsel for the respondents submitted that as the complainant was not present in the court below on the date fixed, hence, on this ground, the complaint was dismissed by the court below. He further submitted that now the complainant has died and due to this reason the appeal is liable to be dismissed u/s 256 (2) Cr.P.C. 5. It is pertinent to mention Section 256 of Cr.P.C., which reproduces 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 3 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 the may be, apply also to cases where the non-appearance of the complainant is due to his death.” 6. From the report of Chief Judicial Magistrate, Hardwar dated 01.02.2005, it reveals that the appellant Balbir Singh has died. Now no one is appearing on behalf of the appellant to contest his case. From the perusal of Section 256 Cr.P.C. it clearly reveals that if the complainant does not appear in the court on the day appointed for the appearance, the Magistrate shall, not withstanding 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. It is further mentioned in 256 (2) that the provisions of sub-section (1) shall so far as may be, apply to cases where the non- appearance of the complainant is due to his death. Also after perusal of the order dated 26.3.1996, it reveals that neither the complainant nor his pleader was present in the court below on 26.3.1996. Hence, the order dated 26.3.1996 passed by Special Judicial Magistrate is justified and correct as per the provision of Section 256 Cr.P.C. C.J.M., Hardwar vide his report 4 dated 1.2.2005 has also submitted that the appellant Balbir has died. Hence, in these circumstances, appeal preferred by the appellant is liable to be dismissed. 7. Having heard learned counsel for the respondents and after perusal of the aforementioned Section and after considering the facts and circumstances of the case, the appeal is devoid of merits and is liable to be dismissed. 8. Accordingly, the appeal is dismissed. The order dated 26.3.1996 passed by Special Judicial Magistrate, Lower Division Eastern Yamuna Nahar, Muzaffarnagar, is confirmed. (Dharam Veer, J.) 30.03.2009 RG