Ms. K.B.K. Vasuki, J.@mdashThe complainant in S.T.C. No. 370 of 2007 is the appellant herein. The appeal is filed challenging the order of acquittal of the accused due to non-appearance of the complainant. The perusal of the records reveals that private complaint was filed on 2.3.2007 and was taken up on file on 7.3.2007 and both the complainant and the accused were present on 30.4.2007 and the accused was given copies and questioned and the case was adjourned for trial on 4.6.2007 and the trial was again postponed to 4.6.2007 and 23.7.2007. The trial Court while doing so, directed the complainant to be present and to get along with the case positively on 23.7.2007 indicating that on his failure to do so, the complaint will be dismissed. However the complainant was again absent and remained unrepresented on 23.7.2007 which compelled the trial Court to dismiss the complaint and to acquit the accused u/s 256(1) Cr.P.C. Hence this appeal by the complainant/appellant before this Court questioning the correctness and validity of such order.
2. The learned counsel for the appellant relied upon the guidelines laid down by Hon''ble Supreme Court in support of his contention that the course adopted by the trial Court in dismissing the complaint and in acquitting the accused for the absence of the complainant on one hearing is, not proper, fair, reasonable and justified. It is contended by the learned counsel for the complainant/appellant that the trial Court ought to have by exercising its discretionary powers reasonably and judicially adjourned the case to another date particularly when the accused was also absent. It is also contended by the learned counsel for the appellant that the dismissal of the complaint for the non representation of the complainant would render administration of justice meaningless and the reasons assigned by the trial Court for rejecting the complaint at the stage of trial are unjustified and unwarranted.
3. It is true that the Supreme Court has, in its decision in
4. For better appreciation, this Court is inclined to extract para 16 and of the judgment of the Supreme Court which is as follows:
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 perforce to attend the Court on all posting days can be put to much harassment by complainant if he does not turn up to the Court on occasions when his presence is necessary. This Section, therefore, affords a protection to an accused against such tactics of the complainant. But that does not mean if the complainant is absent, Court has a duty to acquit the accused in invitum.
17. Reading the Section in its entirety would reveal that two constraints are imposed on the Court for exercising the power under the Section. 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. 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 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.
5. Our High Court has also applying the observation of the Supreme Court expressed the same, view in the judgments (i) Waskefield Spinners by its Partner D. Parthasarathy v. K.N. Raman 2001 (2) MWN (Cr.) 275 and (ii) S. Ravichandran v. V. Pandhan 2003 (1) L.W. (Crl.) 273 : LNIND 2002 Mad 1194 and (iii)
6. Our High Court has in para 3 of the judgment Waskefield Spinners by its Partner D. Parthasarathy v. K.N. Raman (supra) cautioned the Courts below;
Two constraints are imposed on the Court for exercising the power u/s 256. 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. 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 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.
7. Our High Court has in para 7 of its judgment S. Ravichandran v. V. Pandiyan (supra) reiterated the same view.
the trial Court is cautioned against passing such orders hereafter and shall take sufficient care and caution prior to passing such slipshod orders, without any ground for passing such order under the provision of which the same has been passed or without assigning valid or tangible reasons in support of the order passed. Such attitude adopted on the part of the lower Court only gives way for this Court to cause interference into the same.
8. Our High Court has in R. Sekar v. S. Rajandran (supra) applying the ratio laid down by the Supreme Court is of the view that the trial Court ought to have adjourned the matter to some other date without dismissing the complaint when the presence of the complainant was absolutely not essential on that day and held the dismissal order of the Magistrate to be illegal and unsustainable. It is no doubt true that this Court is bound by the principles laid down by Honourable Supreme Court. This Court is also equally agreeable with the views expressed by the learned brother Judges of our Court.
9. However, this Court is of the view that the observations of the Supreme Court and our High Courts are not strictly applicable to the facts involved in the instant case. The particulars above referred to would reveal that the trial Court having posted the case for trial and having noted the absence of the complainant continuously for two hearings passed a conditional order that in the event of his failure to appear on the next date of hearing and to get along with the trial positively the complaint will be dismissed and on the date of next hearing, the complainant was in violation of such order absented himself as such the trial Court was compelled to dismiss the complaint and acquit the accused. That being the factual state of affairs, evident from the particulars furnished in the lower Court records the impugned order cannot be found fault with. As a matter of fact, the Supreme Court has in the beginning of para 16 of its judgment above referred to, observed that Section 256 is introduced to offer some deterrence against dilatory tactics on the part of a complainant who set the law in motion through the complaint. It is further observed by the Supreme Court that by the absence of the complainant, the accused who is perforce to attend the Court on all posting days is put into harassment and Section 256 affords a protection to an accused against such tactics of the complainant.
10. In the instant case also, the accused was present on all the hearing dates when the case was posted for trial, but the case could not be proceeded with due to the absence of the complainant who initiated the complaint. That being so, the complainant who failed to comply with the conditional order of the trial Court and failed to co-operate with the Court to proceed with trial cannot be permitted to question the order impugned herein. However, this Court is in the interest of administration of criminal justice, inclined to give the complainant one more opportunity to have his case to be decided on merits. The learned counsel for the respondent has also no objection for adopting such course. With that view, the order of the trial Court is set aside and the case is remanded back to fresh disposal. In the result, the criminal appeal is allowed by setting aside the order dated 23.7.2007 in S.T.C. No. 370 of 2007 on the file of Judicial Magistrate, Thiruvarur and the case is remanded back to the trial Court for disposal as per law after giving due opportunity to both the parties to adduce evidence. Considering the date on which the complaint is taken on file, the trial Court is directed to proceed with the case and dispose of the case expeditiously not later than four months from the date of receipt of the copy of this order along with lower Court records. The parties are also directed to fully cooperate with the trial Court for the expeditious disposal.
