Kumaresan vs Girirajan

A. Raman, J.—This appeal is against the order passed by the Judicial Magistrate No.1, Kancheepuram on 23.11.1990 dismissing the

complaint and acquitting the accused u/s 256 of Criminal Procedure Code.

The complaint is one filed u/s 138 of the Negotiable Instruments Act. The date of the offence is 15.7.1989 and date of complaint is 9.12.1989.

The order does not show whether any process was issued to the accused and whether the accused had entered appearance or not. It does not

also read that it was the appointed day for a appearance of the accused on the date fixed for trial. The order also does not show that on the date

of hearing i.e., 23.11.90 the accused was present. It is not stated in the order that the case was posted finally on that day. It is not also stated that

the complainant has been absent on the previous hearing. Within six months of the filing of the complaint, the case has been disposed of by the

Magistrate, by misusing the provisions of Section 256 of Code of Criminal Procedure. Section 256 of the Code, no doubt, empowers the

Magistrate to dismiss the complaint. But the power has to be exercised with judicial restraint and to advance the cause of justice. But in this case, it

is an arbitrary exercise of discretion which is to be condemned. To dispose of the matter in this fashion resorting to Section 256 Cr.P.C. is to be

deprecated. Definitely it cannot be the intention of the legislature. Merely because Section 256 empowers the Magistrate that if on the date fixed

for hearing the complainant does not appear, the Magistrate can dismiss the complaint, such discretion cannot be exercised in a disposal oriented

spirit or mechanically. It is not as though the Magistrate has no other option except to throw out the complaint. In fact, the Section provides that if

the summon has been issued on complaint and on the day appointed for appearance of the accused or subsequent date, if the complainant is

absent, the Magistrate can also adjourn the case for reasons. Hence, I have already pointed out that there is no indication in the order that summon

has been issued to the accused on the complaint. Nor the order discloses that the date 23.11.1990 was fixed for appearance of the accused or for

trial. In such circumstances, the exercise of the jurisdiction u/s 256 Code of Criminal Procedure is capricious and unjustifiably arbitrary. It is not as

if the code compels the Magistrate concerned to dismiss the complaint and acquit the accused. The discretion to adjourn the hearing of the case to

some other day is also there. Thus, the disposal in this case by the Magistrate would reveal his desire to tick off the case from his file. Such

statistics oriented disposal will not augur well for the administration of justice. The parties have come to Court for redressal of their grievance and

in exercise of certain rights. Therefore, it is just and proper that a reasonable opportunity should be given to the parties who knock at the doors of

the Court. Earnest and sincere effort must be made to do justice by administering the law and to advance the cause of justice. But what we find in

this case is an abandonment of judicial responsibility and a disregard of the obligations imposed by the law of reasonableness upon a Judicial

Officer. There is nothing to show that the absence of the petitioner was deliberate and wilful. If it was a case which had been pending for number

of years, the discretion exercised by the Magistrate can well be understood. But, that is not the case here. In a hurry, the Magistrate has acted. The

order is not supported by rhyme or reason. It is but a sacrifice of Justice at the altar of frenzied disposal. It is an order made to reach an end which

is disposal. There has been no attempt to do real justice. If such disposals are resorted to the confidence the public have in the system will be

greatly eroded. There is certain accountability to the society. Therefore, any exercise of discretion should be tempered by judicial conscience,

reasonableness and must be with a touch of desire to alleviate the sufferings of those who knock at the doors of the Court. The order passed by

the Magistrate, does not fall within any of the accepted notions. Therefore, I have no hesitation to set aside the order, which eminently deserves the

said fate.

In the result, this appeal is allowed. The order passed by the Judicial Magistrate No.1, Kancheepuram dismissing the complaint and acquitting

the accused is hereby set aside. The Judicial Magistrate No.1 Kancheepuram is hereby directed to take the case on his file and dispose of the case

in accordance with law.