Gunaram Lilhare and Others vs Santram Verma and Another

Manindra Mohan Shrivastava, J.—Head on admission. This petition u/s 482 of the Cr.P.C. has been filed by the petitioners aggrieved by order dated 6.7.2011 passed in Criminal Revision No.43/2010, whereby order dated 29.10.2010 passed by the Magistrate, rejecting petitioner''s application u/s 256 of the Cr.P.C., has been affirmed.

Respondent No. 1 filed complaint against the petitioners/accused in the year 2008. alleging commission of offence u/s 500 of the IPC. On 29.10.2010, the complaint case was fixed for arguments on objection application filed by the petitioners, but, on that date, respondent No. 1, the complainant was not present. The learned Magistrate recorded absence of the complainant and adjourned the hearing of the case, which was directed to be listed for arguments and further proceedings on 15.11.2010. According to the petitioners, absence of the complainant on 29.10.2010 rendered the complaint liable to be dismissed under the mandate of the provision contained in Section 256 (1) of the Cr.P.C. Revision petition was preferred against order dated 29.10.2010, which too has been dismissed, vide impugned order dated 6.7.2011, giving rise to this petition.

Contention of learned counsel for the petitioners is that in view of the mandatory provision contained in Section 256 (1) of the Cr.P.C., if the complainant does not appear, it is mandatory for the Magistrate to acquit the accused. Learned counsel for the petitioners further submits that in the impugned order, there is nothing to show that there existed some reasons, which according to the Magistrate, was considered proper to adjourn the hearing of the case to some other day instead of acquitting the accused.

On the other hand, learned counsel for respondent No. 1 submitted that the provision contained in Section 256 (1) of the Cr.P.C confers discretionary power on the Magistrate either to dismiss the complaint or to adjourn the hearing of the case. It is submitted that the case was listed only for consideration of objection application, which can be heard even in the absence of the complainant. It is further submitted that in the circumstances of the case, the discretion has been exercised judiciously by the Magistrate. It is also submitted that the learned Sessions Judge has taken into consideration various attending circumstances of the case, including that the complaint case was time and again adjourned after service of summons to the accused persons, because the accused persons were not present on various dates. In support of his submissions, learned counsel for the respondent relied upon the decisions in the cases of Mohd. Azeem Vs. A. Venkatesh and Another, S. Anand Vs. Vasumathi Chandrasekar, and G. Sundaresan Vs. M.S. Hardwares and Another,

The consequences of non-appearance of complainant are provided u/s 256 of the Cr.P.C., which relates to trial of summons cases by Magistrates. Section 256 of the Cr.P.C., which is relevant, is extracted below:

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 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 may be, apply also to cases where the non- appearance of the complainant is due to his death.

The provision contained in Section 256 (1) provides that if the complainant does not appear, the Magistrate shall, acquit the accused, unless for some reasons he thinks it proper to adjourn the hearing of the case to some other day. Proviso appended to the aforesaid provision makes provision in case complainant is represented by a pleader or by the officer conducting prosecution or where the Magistrate is of the opinion that the personal attendance of the complainant is not necessary. In that case, the Magistrate may dispense with his attendance and proceed with the case. The Supreme Court had an occasion to examine statutory scheme of Section 256 of the Cr.P.C. in the case of Associated Cement Co. Ltd. Vs. Keshvanand, and it was observed as below:

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 in 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 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.

The aforesaid decision therefore lays down that the power u/s 256 of the Cr.P.C. is discretionary in nature. Therefore, it cannot be said, as a rule of thumb, that in each and every case, where the complainant is absent, the complainant must necessarily be dismissed and accused acquitted. However, looking to the object of the provision, as observed by the Supreme Court in the aforesaid decision, the discretion vested on the Magistrate to either acquit the accused person or to proceed with the complaint is required to be exercised judiciously and fairly without impairing the cause of administration of criminal justice. Therefore, what is of paramount consideration and guiding principle in the matter of exercise of discretionary power u/s 256 of the Cr.P.C. is the cause of administration of criminal justice. Where in a given case, the complaint should be dismissed and accused acquitted or the Court should proceed even in the absence of the complainant without dismissing the case, therefore, would depend upon facts and circumstances of each case and no straight-jacket formula in that regard can be laid down.

As held hereinabove, the discretion is required to be exercised by the Magistrate judiciously and properly. The language of Section 256 (1) of the Cr.P.C. requires the Magistrate to apply its mind to the attending facts and circumstances of the case. The statutory provision engrafted in Section 256 (1) is clearly, indicative of the legislative intention that there has to be some reason, which, in the opinion of the Magistrate, would make it proper to adjourn the hearing of the case to some other day rather than dismissing the complaint on account of absence of the complainant. Therefore, the order passed by the Magistrate, adjourning the hearing of the case to some other day, instead of acquitting the accused, in the absence of complainant, must disclose that there was application of mind by the Magistrate. At this stage, it would be necessary to deal with the submission of learned counsel for respondent No. 1 that it is not necessary to record any reason. True it is that it has not been stated in so many words that the Magistrate is required to record his reasons in writing, the existence of reason which led the Magistrate to think it proper to adjourn the hearing of the case to some other day, needs to be reflected, however brief it may be, in the order itself.. Absolving the Magistrate from recording anything while exercising its discretionary jurisdiction would render the statutory provisions meaningless. The decision of the Magistrate not to acquit even though complainant is absent, allows the criminal trial to continue against the accused. Taking into consideration the serious consequences flowing from exercise of such discretionary power, the provision contained in Section 256 (1) is required to be strictly construed and that too in favour of the accused and not in favour of the complainant. Therefore, even though it is not obligatory on the Magistrate to necessary dismiss the complaint in the absence of complainant, nevertheless, the power is to be exercised in a judicious and fair manner, the paramount consideration being cause of administration of criminal justice. Consequently, where the Magistrate decides to proceed with the complaint instead of dismissing the same in the absence of the complainant, some reasons are required to be reflected from the order of the Magistrate, however brief they may be. It is difficult to accept contention that as the provision does not require the Magistrate to record reasons in writing, the order need not contain anything. If such a contention is accepted, the provision contained in the statute will be rendered meaningless, superfluous and of no effect.

I, therefore, respectfully beg to disagree with the view taken in the case of G. Sundaresan (supra). In the case of Mohd. Azeem (supra), it was found that on account of one singular default, the complaint was dismissed and even though sufficient cause was shown for restoration of the complaint, very strict and unjust attitude resulted in dismissal of the application and failure of justice. The Supreme Court in that case (Mohd. Azeem) considered on facts that the cause shown for restoration was just and proper that there was mistake on the part of the complainant in noting the date of hearing.

In the case of S. Anand (supra), it was found that witnesses on behalf of the complainant were already examined and the date on which the complainant remained absent was the date fixed for examination of the defence witnesses. It was observed that the defendant could have examined his witnesses if he wanted to do the same and the appearance of the complainant was not necessary. In that background, the exercise of discretionary jurisdiction u/s 256 of the Cr PC to dismiss the complaint was interfered with.

In the present case, the order of the Magistrate does not contain any reason whatsoever as to what were the reasons which made it proper to adjourn the hearing of the case instead of dismissing on account of absent of the complainant. Though the order passed in revision shows that the learned revisional Court has itself taken into consideration the circumstances of the case to justify the order passed by the Magistrate, in the opinion of this Court, in the absence of there being anything recorded in the order of the Magistrate, examination of the circumstances by the revisional Court was uncalled for. There has been an illegality in exercise of power u/s 256 of the Cr.P.C. by the Magistrate and that by itself is sufficient to call for interference.

In the result, the order passed by the Magistrate and that by the revisional Court cannot be sustained and are set aside. The matter is remanded to the learned Magistrate to consider the circumstances of the case and pass appropriate orders as may be necessary to advance the cause of administration of criminal justice in exercise of discretionary powers, in a just and fair manner. The petition is accordingly finally disposed of.