What was the purpose of including a
provision like Section 247 in the old Code (or
Section 256 in the new Code). It affords some
deterrence against dilatory tactics on the part
of a complainant who set the law in motion
through his complaint. An accused who is per
force to attend the court on all posting days
can be put to much harassment by a complainant
if he does not turn up to the court on occasions
when his presence is necessary. The section,
therefore, affords protection to an accused
against such tactics of the complainant. But
that does not mean if the complainant is absent,
the court has a duty to acquit the accused is
17. invitum. 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 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 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." (Emphasis added)
12.The Apex Court has thus reiterated that if the
complainant remains absent, there is no duty on the
Court to acquit the accused in invitum. In fact the
Apex Court held that whenever it is noticed that
complainant is absent on a particular date, the Court
must consider whether personal attendance of the
complainant was essential on that date for the progress
of the case. It will be also necessary to refer to a
decision of the Apex Court in the case of Mohd. Azeem
v. A. Venkatesh and Anr [(2002) 7 Supreme Court Cases
726] wherein the Apex Court held that a single default
on the part of the complainant cannot be a ground to
exercise power under section 256 of the said Code.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO.1739 OF 2008
India.. Fintrade Limited Applicant
Versus
Cherry.. Fashions Ltd & Ors. Respondents
CORAM : A.S.OKA, J.
DATE : 03rd April 2009.
Citation; 2009 ALLMR(cri)1657
By the order dated 20th February 2009, this
Court directed that the application and/or appeal will
be heard at the stage of admission. Accordingly, the
same is taken up for final dismissal. The applicant is
the complainant in a complaint filed against the
respondent Nos.1 to 4 alleging commission of offence
under section 138 read with section 141 of the
Negotiable Instruments Act, 1881 (hereinafter referred
to as the said Act). The process was issued on the said
complaint. By order dated 16th July 2007, the learned
Special Metropolitan Magistrate purportedly exercised
the power under section 256 of the Code of Criminal
Procedure, 1973 (hereinafter referred to as the said
Code). The learned Magistrate by the impugned order
dated 16th July 2007 acquitted the 1st to 4th
respondents-accused.
2.The learned counsel appearing for the applicant
has placed reliance on roznama of the complaint. He
pointed out that on 11th June 2005 the learned
Magistrate passed an order for issuing summons by
publication as against the accused Nos.1 and 4. He
pointed out that in terms of the order dated 11th June
2005, publication of notice was made. He has placed
reliance on the publication of notice of accused Nos.1
to 4 in daily "Free Press Journal" dated 04th July 2005
and Gujarati daily "Janmabhumi" dated 04th July 2005.
The xerox copies of the relevant cuttings of the
newspapers have been annexed. Inviting my attention to
the roznama of the proceedings, he stated that case was
adjourned on many occasions as the Court was vacant. He
submitted that the applicant was diligently prosecuting
the complaint and there was no default on the part of
the applicant. He submitted that the ground on which
the impugned order is passed by the learned Magistrate
is completely erroneous.
3.The learned counsel appearing for the accused
has opposed the submissions made by the learned counsel
appearing for the applicant. He submitted that the
authorised representative of the applicant was absent on
many dates. He invited my attention to roznama of the
proceedings. He submitted that there is no explanation
for the repeated absence of the authorised
representative of the applicant. He submitted that the
complaint is pending from the year 1998. He placed
reliance on a decision of the Apex Court in the case of
S. Rama Krishana v. S. Rami Reddy (Dead) By his legal
representatives & Ors. [(2008) 5 Supreme Court Cases
535]. He submitted that the view taken by the learned
Magistrate that the complaint was required to be
dismissed is certainly a possible view. He submitted
that the learned Magistrate has rightly exercised the
discretion under section 256 of the said Code. He
submitted that in such a situation there is no option
for the learned Magistrate but to exercise power under
section 256 of the said Code. He placed reliance on a
decision of Madras High Court in the case of Sowbagyam
v. Kaliamusthi (1971 Criminal Law Journal 437). He
submitted that it is imperative on the part of the
learned Magistrate to acquit the accused when the
complainant is absent on the date fixed for hearing of
the complaint. He submitted that in an appeal against
acquittal, the Court cannot embark on the enquiry
regarding sufficiency of the reasons for the absence of
the complainant or otherwise. The learned counsel
appearing for the accused submitted that as the view
taken by the learned Magistrate is certainly a possible
view, no interference can be made in an appeal against
acquittal.
4.I have given careful consideration to the
submissions. I have perused the roznama of the case.
As noticed in several matters pending in the Courts of
Metropolitan Magistrates in the City of Mumbai, the
roznama in this case has not been properly maintained.
The Chapter III of the Criminal Manual requires roznama
to be maintained in a particular format. Paragraph 2 of
Chapter III of the Criminal Manual is relevant which
reads thus:
"2.(i)A proceeding sheet (Roznama)
should, in the form given below, be kept in
English in all inquiries, trials and other
cases. It is meant only as a guide and is not
intended to be exhaustive. In uncontested
non-cognizable cases, a proceeding sheet
(Roznama) may not be maintained.
(ii)The object of Roznama is to show in
concise form the proceedings taken in each with
the date of each proceeding. It is to be
faithful history of the case and correct list
and description of the exhibits, and at the same
time, it should be so drawn up as to show all
the details of the case at one view and yet be
as concise as possible. It is not to include a
record of ministerial acts, such as the receipts
of bhatta or process fees, the preparation of
summonses and the like.
(iii)It must be kept from day to day as an
original document. It may be written by a clerk
but must be initialled or signed by the
Magistrate at the end of the proceeding recorded
every day."
6.In paragraph 2 of Chapter III of the Criminal
Manual the format of roznama has been prescribed. In
the present case the roznama is not maintained in a
chronological order. On the top of the left hand side
of first page there is a roznama of the date starting
from 18th July 2006 and ending with 11th June 2005. On
the next page the roznama starts from 11th June 2005 and
ends with 15th October 2003. The exhibit numbers given
to vakalatnama, application etc have not been
incorporated in the roznama. The provisions of Criminal
Manual are binding even on the Courts of the
Metropolitan Magistrate in the city of Mumbai. I am
constrained to observe that the roznama has been
maintained in a very shabby manner. I have already
issued directions in another case to the learned Chief
Metropolitan Magistrate to ensure that roznama is
recorded in terms of the provisions of the Criminal
Manual.
7.Perusal of the roznama dated 11th June 2005
shows that accused Nos.2 and 3 were present and the
learned Magistrate issued summons to accused Nos.1 to 4
by publication in newspapers. Exhibit D (collectively)
annexed to the application for leave show that the
compliance was made by the applicant by making necessary
publication on 04th July 2005. The roznama shows that
on the returnable date i.e on 16th August 2005 and
thereafter on 03rd October 2005, 25th November 2005,
15th December 2005, 23rd January 2006 and 07th March
2006, the complaint was adjourned as the Court was
vacant. The roznama shows that on 13th April 2006 the
Court was vacant and the complaint was adjourned to 18th
July 2006. On 18th July 2006, the board was discharged
and therefore the complaint was adjourned to 13th
September 2006. On 13th September 2006, 06th December
2006 and 08th February 2007, the complaint was adjourned
as the Court was vacant. On 14th May 2007, the
applicant and his advocate were absent. But it is
pertinent to note that the accused No.4 was present and
he applied for exemption. The appearance of accused
No.4 on that day shows that the applicant had complied
with the earlier order of publication. The case was
adjourned to 07th June 2007 on which day again the Court
was vacant. Even on the next date i.e 27th June 2007
the Court was vacant and the Complaint was adjourned to
16th July 2007. The impugned order dated 16th July 2007
reads thus:
"On perusal of record, it appears that order
dated 11.06.2005 is not at all complied with.
The matter is of 1998 and unnecessary pending
due to non-compliance of the orders.
Considering these facts, the complaint is
dismissed for want of prosecution and failure of
the complaint to take necessary steps within
reasonable time. Accused on record shall
accordingly stand acquitted. Bail bond of the
accused, if any, shall stand cancelled.
Proceeding accordingly closed."
8.The roznama of the earlier dates shows that the
case was repeatedly adjourned as the Court was vacant.
There is no entry in the roznama that on 16th July 2007
or on any earlier date the complaint was fixed for
recording of evidence. The observation made by the
learned Judge that order dated 11th June 2005 was not
complied with is factually incorrect. That is apparent
from the record that as on 14th May 2007 the 4th accused
had appeared and applied for exemption. The statement
that due to non-compliance of the order, the complaint
of the year 1998 was pending is again an incorrect
statement. Perusal of the roznama shows that the
applicant cannot be blamed if the complaint of 1998
remained pending. On larger number of dates, the
complaint was adjourned as the Presiding Officer was not
available. The observation that the complainant has not
taken the steps in reasonable time is again factually
incorrect.
9.In the light of this factual situation, it will
be necessary to refer to the decision of the Apex Court
in the case of S. Rama Krishna (supra) relied upon by
the learned counsel appearing for the 1st to 4th
respondents. In paragraph Nos.12 to 14 of the said
decision the Apex Court has held thus:
"12.The learned Magistrate in terms of
sub-section (1) of Section 256 exercises wide
jurisdiction. Although an order of acquittal is
of immense significance, there cannot be any
doubt or dispute whatsoever that the discretion
in this case had been properly exercised by the
learned Magistrate.
13.The provisions of Section 256(1) mandate
the Magistrate to acquit the accused unless for
some reason he thinks it proper to adjourn the
hearing of the case. If an exceptional course
is to be adopted, it must be spelt out. The
discretion conferred upon the learned
Magistrate, however, must be exercised with
great care and caution. The conduct of the
complainant for the said purpose is of immense
significance. He cannot allow a case to remain
pending for an indefinite period. The appellant
had been attending the court for a long time,
except on some dates where when remained absent
or was otherwise represented by his advocate.
He had to remain present in the Court. He
attended the Court on not less than 20 occasions
after the death of the original complainant. If
in the aforementioned situation, the learned
Magistrate exercised his discretionary
jurisdiction, the same, in our opinion, should
not have been ordinarily interfered with.
14.The High Court was exercising its
jurisdiction under sub-section (4) of Section
378 of the Code of Criminal Procedure. The
appeal preferred by the respondents was against
a judgment keeping in view the limited role it
had to play in the matter." (Emphasis added)
10.As far as the decision of the Madras High Court
in the case of Sowbagyam (supra) is concerned, in
paragraph No.12 of the aforesaid decision of the Apex
Court, it is held that there is a discretion vested in
the learned Magistrate under section 256 of the said
Code and therefore the view of the Madras High Court
does not appear to be consistent with the view of the
Apex Court. The view taken by the Madras High Court is
that whenever the complainant is absent, it is
imperative that the complaint should be dismissed.
11.It will be also necessary to refer to another
decision of the Co-ordinate Bench of the Apex Court in
the case of Associated Cement Co Ltd v. Keshavanand
[(1998) 1 Supreme Court Cases 687]. It is will be
necessary to refer to paragraphs 15 to 17 of the said
decision which read thus:
"15.Section 256 of the Code of Criminal
Procedure, 1973 (for short "the new Code") is
the corresponding provision to section 247 of
the old Code. The main body of both provisions
is identically worded, but there is a slight
difference between the provisos under the two
sections. The proviso to Section 256 of the new
Code is reproduced here:
."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."
16.What was the purpose of including a
provision like Section 247 in the old Code (or
Section 256 in the new Code). It affords some
deterrence against dilatory tactics on the part
of a complainant who set the law in motion
through his complaint. An accused who is per
force to attend the court on all posting days
can be put to much harassment by a complainant
if he does not turn up to the court on occasions
when his presence is necessary. The section,
therefore, affords protection to an accused
against such tactics of the complainant. But
that does not mean if the complainant is absent,
the court has a duty to acquit the accused is
17. invitum. 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 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 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." (Emphasis added)
12.The Apex Court has thus reiterated that if the
complainant remains absent, there is no duty on the
Court to acquit the accused in invitum. In fact the
Apex Court held that whenever it is noticed that
complainant is absent on a particular date, the Court
must consider whether personal attendance of the
complainant was essential on that date for the progress
of the case. It will be also necessary to refer to a
decision of the Apex Court in the case of Mohd. Azeem
v. A. Venkatesh and Anr [(2002) 7 Supreme Court Cases
726] wherein the Apex Court held that a single default
on the part of the complainant cannot be a ground to
exercise power under section 256 of the said Code.
13.Turning to the facts of the present case, it is
obvious that the reasons recorded by the learned Judge
are completely erroneous and contrary to the record.
Under no circumstances the said reasons could have been
recorded by the learned trial Judge for exercising power
under section 256 of the said Code. From 11th June 2005
to 16th July 2007 the court had no presiding Judge on 14
dates. On none of these dates the absence of the
applicant has been recorded in roznama. On the dates
prior to 16th July 2007 the Court was vacant. Even on
16th July 2007 the case is not shown for hearing. The
order of dimissal passed by the learned Judge is on the
ground that order dated 11th June 2006 is not complied
with. This is factually incorrect. Under no
circumstances, the learned Judge could have taken the
view which he has taken. Therefore, this is not a case
where two views are possible. The impugned order is
perverse. As held by the Apex Court power under section
256 of the said Code cannot be exercised only on account
of absence of the complainant and the learned Magistrate
has to exercise discretion after considering the conduct
of the applicant.
14.Hence, I pass the following order:
(i)The impugned order dated 16th July 2007
is quashed and set aside.
(ii)The complaint No.2613/SS/2005 is
restored to the file of the learned
Magistrate.
(iii)The learned Magistrate will proceed with
the complaint in accordance with law
after issuing fresh summons to the
accused.
(iv)Hearing of the complaint is expedited.
(A.S.Oka,J)
Print Page
provision like Section 247 in the old Code (or
Section 256 in the new Code). It affords some
deterrence against dilatory tactics on the part
of a complainant who set the law in motion
through his complaint. An accused who is per
force to attend the court on all posting days
can be put to much harassment by a complainant
if he does not turn up to the court on occasions
when his presence is necessary. The section,
therefore, affords protection to an accused
against such tactics of the complainant. But
that does not mean if the complainant is absent,
the court has a duty to acquit the accused is
17. invitum. 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 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 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." (Emphasis added)
12.The Apex Court has thus reiterated that if the
complainant remains absent, there is no duty on the
Court to acquit the accused in invitum. In fact the
Apex Court held that whenever it is noticed that
complainant is absent on a particular date, the Court
must consider whether personal attendance of the
complainant was essential on that date for the progress
of the case. It will be also necessary to refer to a
decision of the Apex Court in the case of Mohd. Azeem
v. A. Venkatesh and Anr [(2002) 7 Supreme Court Cases
726] wherein the Apex Court held that a single default
on the part of the complainant cannot be a ground to
exercise power under section 256 of the said Code.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO.1739 OF 2008
India.. Fintrade Limited Applicant
Versus
Cherry.. Fashions Ltd & Ors. Respondents
CORAM : A.S.OKA, J.
DATE : 03rd April 2009.
Citation; 2009 ALLMR(cri)1657
By the order dated 20th February 2009, this
Court directed that the application and/or appeal will
be heard at the stage of admission. Accordingly, the
same is taken up for final dismissal. The applicant is
the complainant in a complaint filed against the
respondent Nos.1 to 4 alleging commission of offence
under section 138 read with section 141 of the
Negotiable Instruments Act, 1881 (hereinafter referred
to as the said Act). The process was issued on the said
complaint. By order dated 16th July 2007, the learned
Special Metropolitan Magistrate purportedly exercised
the power under section 256 of the Code of Criminal
Procedure, 1973 (hereinafter referred to as the said
Code). The learned Magistrate by the impugned order
dated 16th July 2007 acquitted the 1st to 4th
respondents-accused.
2.The learned counsel appearing for the applicant
has placed reliance on roznama of the complaint. He
pointed out that on 11th June 2005 the learned
Magistrate passed an order for issuing summons by
publication as against the accused Nos.1 and 4. He
pointed out that in terms of the order dated 11th June
2005, publication of notice was made. He has placed
reliance on the publication of notice of accused Nos.1
to 4 in daily "Free Press Journal" dated 04th July 2005
and Gujarati daily "Janmabhumi" dated 04th July 2005.
The xerox copies of the relevant cuttings of the
newspapers have been annexed. Inviting my attention to
the roznama of the proceedings, he stated that case was
adjourned on many occasions as the Court was vacant. He
submitted that the applicant was diligently prosecuting
the complaint and there was no default on the part of
the applicant. He submitted that the ground on which
the impugned order is passed by the learned Magistrate
is completely erroneous.
3.The learned counsel appearing for the accused
has opposed the submissions made by the learned counsel
appearing for the applicant. He submitted that the
authorised representative of the applicant was absent on
many dates. He invited my attention to roznama of the
proceedings. He submitted that there is no explanation
for the repeated absence of the authorised
representative of the applicant. He submitted that the
complaint is pending from the year 1998. He placed
reliance on a decision of the Apex Court in the case of
S. Rama Krishana v. S. Rami Reddy (Dead) By his legal
representatives & Ors. [(2008) 5 Supreme Court Cases
535]. He submitted that the view taken by the learned
Magistrate that the complaint was required to be
dismissed is certainly a possible view. He submitted
that the learned Magistrate has rightly exercised the
discretion under section 256 of the said Code. He
submitted that in such a situation there is no option
for the learned Magistrate but to exercise power under
section 256 of the said Code. He placed reliance on a
decision of Madras High Court in the case of Sowbagyam
v. Kaliamusthi (1971 Criminal Law Journal 437). He
submitted that it is imperative on the part of the
learned Magistrate to acquit the accused when the
complainant is absent on the date fixed for hearing of
the complaint. He submitted that in an appeal against
acquittal, the Court cannot embark on the enquiry
regarding sufficiency of the reasons for the absence of
the complainant or otherwise. The learned counsel
appearing for the accused submitted that as the view
taken by the learned Magistrate is certainly a possible
view, no interference can be made in an appeal against
acquittal.
4.I have given careful consideration to the
submissions. I have perused the roznama of the case.
As noticed in several matters pending in the Courts of
Metropolitan Magistrates in the City of Mumbai, the
roznama in this case has not been properly maintained.
The Chapter III of the Criminal Manual requires roznama
to be maintained in a particular format. Paragraph 2 of
Chapter III of the Criminal Manual is relevant which
reads thus:
"2.(i)A proceeding sheet (Roznama)
should, in the form given below, be kept in
English in all inquiries, trials and other
cases. It is meant only as a guide and is not
intended to be exhaustive. In uncontested
non-cognizable cases, a proceeding sheet
(Roznama) may not be maintained.
(ii)The object of Roznama is to show in
concise form the proceedings taken in each with
the date of each proceeding. It is to be
faithful history of the case and correct list
and description of the exhibits, and at the same
time, it should be so drawn up as to show all
the details of the case at one view and yet be
as concise as possible. It is not to include a
record of ministerial acts, such as the receipts
of bhatta or process fees, the preparation of
summonses and the like.
(iii)It must be kept from day to day as an
original document. It may be written by a clerk
but must be initialled or signed by the
Magistrate at the end of the proceeding recorded
every day."
6.In paragraph 2 of Chapter III of the Criminal
Manual the format of roznama has been prescribed. In
the present case the roznama is not maintained in a
chronological order. On the top of the left hand side
of first page there is a roznama of the date starting
from 18th July 2006 and ending with 11th June 2005. On
the next page the roznama starts from 11th June 2005 and
ends with 15th October 2003. The exhibit numbers given
to vakalatnama, application etc have not been
incorporated in the roznama. The provisions of Criminal
Manual are binding even on the Courts of the
Metropolitan Magistrate in the city of Mumbai. I am
constrained to observe that the roznama has been
maintained in a very shabby manner. I have already
issued directions in another case to the learned Chief
Metropolitan Magistrate to ensure that roznama is
recorded in terms of the provisions of the Criminal
Manual.
7.Perusal of the roznama dated 11th June 2005
shows that accused Nos.2 and 3 were present and the
learned Magistrate issued summons to accused Nos.1 to 4
by publication in newspapers. Exhibit D (collectively)
annexed to the application for leave show that the
compliance was made by the applicant by making necessary
publication on 04th July 2005. The roznama shows that
on the returnable date i.e on 16th August 2005 and
thereafter on 03rd October 2005, 25th November 2005,
15th December 2005, 23rd January 2006 and 07th March
2006, the complaint was adjourned as the Court was
vacant. The roznama shows that on 13th April 2006 the
Court was vacant and the complaint was adjourned to 18th
July 2006. On 18th July 2006, the board was discharged
and therefore the complaint was adjourned to 13th
September 2006. On 13th September 2006, 06th December
2006 and 08th February 2007, the complaint was adjourned
as the Court was vacant. On 14th May 2007, the
applicant and his advocate were absent. But it is
pertinent to note that the accused No.4 was present and
he applied for exemption. The appearance of accused
No.4 on that day shows that the applicant had complied
with the earlier order of publication. The case was
adjourned to 07th June 2007 on which day again the Court
was vacant. Even on the next date i.e 27th June 2007
the Court was vacant and the Complaint was adjourned to
16th July 2007. The impugned order dated 16th July 2007
reads thus:
"On perusal of record, it appears that order
dated 11.06.2005 is not at all complied with.
The matter is of 1998 and unnecessary pending
due to non-compliance of the orders.
Considering these facts, the complaint is
dismissed for want of prosecution and failure of
the complaint to take necessary steps within
reasonable time. Accused on record shall
accordingly stand acquitted. Bail bond of the
accused, if any, shall stand cancelled.
Proceeding accordingly closed."
8.The roznama of the earlier dates shows that the
case was repeatedly adjourned as the Court was vacant.
There is no entry in the roznama that on 16th July 2007
or on any earlier date the complaint was fixed for
recording of evidence. The observation made by the
learned Judge that order dated 11th June 2005 was not
complied with is factually incorrect. That is apparent
from the record that as on 14th May 2007 the 4th accused
had appeared and applied for exemption. The statement
that due to non-compliance of the order, the complaint
of the year 1998 was pending is again an incorrect
statement. Perusal of the roznama shows that the
applicant cannot be blamed if the complaint of 1998
remained pending. On larger number of dates, the
complaint was adjourned as the Presiding Officer was not
available. The observation that the complainant has not
taken the steps in reasonable time is again factually
incorrect.
9.In the light of this factual situation, it will
be necessary to refer to the decision of the Apex Court
in the case of S. Rama Krishna (supra) relied upon by
the learned counsel appearing for the 1st to 4th
respondents. In paragraph Nos.12 to 14 of the said
decision the Apex Court has held thus:
"12.The learned Magistrate in terms of
sub-section (1) of Section 256 exercises wide
jurisdiction. Although an order of acquittal is
of immense significance, there cannot be any
doubt or dispute whatsoever that the discretion
in this case had been properly exercised by the
learned Magistrate.
13.The provisions of Section 256(1) mandate
the Magistrate to acquit the accused unless for
some reason he thinks it proper to adjourn the
hearing of the case. If an exceptional course
is to be adopted, it must be spelt out. The
discretion conferred upon the learned
Magistrate, however, must be exercised with
great care and caution. The conduct of the
complainant for the said purpose is of immense
significance. He cannot allow a case to remain
pending for an indefinite period. The appellant
had been attending the court for a long time,
except on some dates where when remained absent
or was otherwise represented by his advocate.
He had to remain present in the Court. He
attended the Court on not less than 20 occasions
after the death of the original complainant. If
in the aforementioned situation, the learned
Magistrate exercised his discretionary
jurisdiction, the same, in our opinion, should
not have been ordinarily interfered with.
14.The High Court was exercising its
jurisdiction under sub-section (4) of Section
378 of the Code of Criminal Procedure. The
appeal preferred by the respondents was against
a judgment keeping in view the limited role it
had to play in the matter." (Emphasis added)
10.As far as the decision of the Madras High Court
in the case of Sowbagyam (supra) is concerned, in
paragraph No.12 of the aforesaid decision of the Apex
Court, it is held that there is a discretion vested in
the learned Magistrate under section 256 of the said
Code and therefore the view of the Madras High Court
does not appear to be consistent with the view of the
Apex Court. The view taken by the Madras High Court is
that whenever the complainant is absent, it is
imperative that the complaint should be dismissed.
11.It will be also necessary to refer to another
decision of the Co-ordinate Bench of the Apex Court in
the case of Associated Cement Co Ltd v. Keshavanand
[(1998) 1 Supreme Court Cases 687]. It is will be
necessary to refer to paragraphs 15 to 17 of the said
decision which read thus:
"15.Section 256 of the Code of Criminal
Procedure, 1973 (for short "the new Code") is
the corresponding provision to section 247 of
the old Code. The main body of both provisions
is identically worded, but there is a slight
difference between the provisos under the two
sections. The proviso to Section 256 of the new
Code is reproduced here:
."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."
16.What was the purpose of including a
provision like Section 247 in the old Code (or
Section 256 in the new Code). It affords some
deterrence against dilatory tactics on the part
of a complainant who set the law in motion
through his complaint. An accused who is per
force to attend the court on all posting days
can be put to much harassment by a complainant
if he does not turn up to the court on occasions
when his presence is necessary. The section,
therefore, affords protection to an accused
against such tactics of the complainant. But
that does not mean if the complainant is absent,
the court has a duty to acquit the accused is
17. invitum. 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 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 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." (Emphasis added)
12.The Apex Court has thus reiterated that if the
complainant remains absent, there is no duty on the
Court to acquit the accused in invitum. In fact the
Apex Court held that whenever it is noticed that
complainant is absent on a particular date, the Court
must consider whether personal attendance of the
complainant was essential on that date for the progress
of the case. It will be also necessary to refer to a
decision of the Apex Court in the case of Mohd. Azeem
v. A. Venkatesh and Anr [(2002) 7 Supreme Court Cases
726] wherein the Apex Court held that a single default
on the part of the complainant cannot be a ground to
exercise power under section 256 of the said Code.
13.Turning to the facts of the present case, it is
obvious that the reasons recorded by the learned Judge
are completely erroneous and contrary to the record.
Under no circumstances the said reasons could have been
recorded by the learned trial Judge for exercising power
under section 256 of the said Code. From 11th June 2005
to 16th July 2007 the court had no presiding Judge on 14
dates. On none of these dates the absence of the
applicant has been recorded in roznama. On the dates
prior to 16th July 2007 the Court was vacant. Even on
16th July 2007 the case is not shown for hearing. The
order of dimissal passed by the learned Judge is on the
ground that order dated 11th June 2006 is not complied
with. This is factually incorrect. Under no
circumstances, the learned Judge could have taken the
view which he has taken. Therefore, this is not a case
where two views are possible. The impugned order is
perverse. As held by the Apex Court power under section
256 of the said Code cannot be exercised only on account
of absence of the complainant and the learned Magistrate
has to exercise discretion after considering the conduct
of the applicant.
14.Hence, I pass the following order:
(i)The impugned order dated 16th July 2007
is quashed and set aside.
(ii)The complaint No.2613/SS/2005 is
restored to the file of the learned
Magistrate.
(iii)The learned Magistrate will proceed with
the complaint in accordance with law
after issuing fresh summons to the
accused.
(iv)Hearing of the complaint is expedited.
(A.S.Oka,J)
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