The Himachal Pradesh High Court has reaffirmed that the dismissal of a criminal complaint for a single instance of non-appearance by the complainant, without judicial discretion or consideration of alternatives, violates the principles of fair trial and due process. This ruling clarifies the mandatory judicial restraint required under Section 279 of the Bharatiya Nagarik Suraksha Sanhita, 2023, and restores critical safeguards for complainants in summons cases.
Background & Facts
The Dispute
The appellant, Dilu Sav, filed a criminal complaint against the respondent, Rishpal Singh, under Sections 323 and 326 of the IPC, alleging assault and hurt. The case was listed before the Additional Chief Judicial Magistrate, Nalagarh, for hearing. On 23.02.2024, both the complainant and his counsel were absent. The trial court, without exploring alternatives, dismissed the complaint in default and acquitted the accused.
Procedural History
- 2021: Complaint filed under Sections 323 and 326 IPC
- 23.02.2024: Case listed for hearing; complainant and counsel absent
- 23.02.2024: Trial court dismissed complaint in default and acquitted accused
- 2025: Appellant filed Cr.MP(M) No.2507 of 2025 seeking condonation of delay
- 2026: Cr.MP(M) No.308 of 2026 granted leave to appeal; appeal registered as Cr. Appeal No.4 of 2026
Relief Sought
The appellant sought quashing of the dismissal order and restoration of the complaint to enable continuation of trial from the stage it stood before dismissal.
The Legal Issue
The central question was whether Section 279 of the Bharatiya Nagarik Suraksha Sanhita, 2023 permits a Magistrate to automatically acquit an accused upon a single instance of non-appearance by the complainant, or whether judicial discretion to adjourn or proceed on existing evidence must first be exercised.
Arguments Presented
For the Petitioner
The appellant’s legal aid counsel argued that the dismissal was arbitrary and contrary to the spirit of Section 279 BNSS, which grants discretion to adjourn rather than compel acquittal. Reliance was placed on Associated Cement Co. Ltd. v. Keshvanand, Mohd. Azeem v. A. Venkatesh, and S. Anand v. Vasumathi Chandrasekar to show that courts must consider whether personal attendance was essential, whether the complainant had a reasonable excuse, and whether the case could proceed on existing evidence. The absence was attributed to unavoidable circumstances and a mistaken belief that counsel would appear.
For the Respondent
The respondent’s counsel contended that under criminal procedure, both parties are obligated to appear on every date. He argued that the trial court acted within its powers under Section 279 BNSS by dismissing the complaint after three adjournments, and that allowing restoration would encourage dilatory tactics. He cited the finality of acquittal under Section 403 BNSS as a bar to restoration.
The Court's Analysis
The Court undertook a detailed interpretation of Section 279 BNSS, emphasizing that its language - "shall, after giving thirty days’ time... acquit the accused, unless for some reason he thinks it proper to adjourn" - explicitly vests discretion in the Magistrate. The Court held that the word "unless" creates a mandatory condition: dismissal is not automatic.
"Power under Section 279 BNSS must be exercised judicially and fairly without impairing the cause of administration of criminal justice."
The Court reviewed multiple precedents, including Associated Cement Co. Ltd. and BLS Infrastructure Ltd. v. Rajwanti Singh, to establish that courts must evaluate: (1) whether the complainant’s personal attendance was necessary on that date; (2) whether the case could proceed on evidence already recorded; and (3) whether the absence was due to circumstances beyond control. The Court noted that the complainant had previously pursued the case diligently, and the absence was singular and unexplained but not malicious.
The Court further held that the trial court failed to consider the proviso to Section 279(1), which permits proceeding without the complainant’s personal attendance if represented by counsel or if attendance is unnecessary. The Court also rejected the argument that Section 403 BNSS barred restoration, noting that Section 403 prohibits alteration of a final judgment, but does not prevent correction of an illegal order passed without due exercise of discretion.
The Court concluded that the dismissal was a mechanical exercise of power, inconsistent with the purpose of Section 279 BNSS, which is to balance the rights of the accused against the right of the complainant to a fair hearing.
The Verdict
The appellant succeeded. The Court quashed the dismissal order dated 23.02.2024 and restored the complaint to its original number and stage. The trial court was directed to proceed from the point where it stood before dismissal, with a direction for both parties to appear on 24.03.2026.
What This Means For Similar Cases
Dismissal in Default Is Not Automatic
- Practitioners must argue that Section 279 BNSS requires judicial discretion, not mechanical dismissal
- A single absence, especially without prior history of delay, cannot justify acquittal
- Courts must record reasons for choosing acquittal over adjournment or proceeding on evidence
Evidence Already Recorded Can Sustain Proceedings
- Where complainant has led evidence and accused has been examined under Section 351 BNSS, the court may proceed to judgment without the complainant’s presence
- Counsel should file applications under Section 311 BNSS to summon additional witnesses and request continuation on existing record
- Failure to consider available evidence renders dismissal illegal
Procedural Fairness Overrides Finality
- Section 403 BNSS does not protect illegal orders; restoration is permissible where dismissal violates natural justice
- Courts must distinguish between procedural lapses and substantive abandonment
- Legal aid counsel and complainants should immediately file appeals under Section 419 BNSS when dismissal occurs without judicial reasoning
