Major K. Mathew Scariah vs K.E. Mathai

David Annoussamy, J.—This is an appeal against an order of acquittal. The facts are summarily as follows: The complainant/Appellant herein filed a complaint before the Sub-Divisional Magistrate, Ponneri, against the Respondent for an offence u/s 500 , I.P.C. On 29th June, 1984, after 49 hearings, the learned Magistrate acquitted the accused/Respondent herein u/s 256(1), Code of Criminal Procedure for the simple reason that the complainant was absent. The case of the complainant is that taking into account the facts that all his evidence had been adduced, that the accused was examined by the Court u/s 313, Cr.P.C., and that the accused also adduced some evidence, the Court ought not to have acquitted the accused for the mere absence of the complainant. He added that he happened to be absent on that day for the reason that he had to rush to the High Court in order to be present in another case without the possibility of informing the trial Court in time.

It was contended on behalf of the Respondent that the complainant was found absent even on earlier occasions which the Court had condoned and that on this last occasion the Court was right in acquitting the accused in the absence of the complainant.

The complainant, who appeared in person, relied on two decisions in support of his case. The first decision is the one in on Arumugham v. Valliammal 1982 M.L.J. (Crl.) 502 : 1982 L.W.(Crl.) 89. where it was held that the Magistrate cannot dismiss the case of a complainant for his mere absence when the case is called, that the order of acquittal is not a matter of routine and does not automatically follow in the absence of the complainant and that good faith is the deal test. In the second case, Vasudevan, T.V. v. T. Govindasami Naicker 1983 L.W. (Crl.) 52., it was found that the complainant was present almost on all the previous hearings, 46 in number covering about 13 months, that the prosecution has let in evidence on its side whereas no defence witness had been examined, that the complainant was prosecuting the case on all the hearings. Under those circumstances, it was held that it was not permissible for the Magistrate to invoke Section 256(1), Code of Criminal Procedure and acquit the accused. It was observed that the Magistrate could have disposed of the case on the merits on the evidence on record and that the Court should have in all fairness taken such a course.

Learned Counsel for the Respondent on his side produced two decision, which are in his favour. The first one is Sowbagyam v. Kaliamurthi 1970 L.W. (Crl.) 87. wherein it was held that in an appeal against an order of acquittal on account of the absence of the complainant the sufficiency of the reason for the absence of the complainant need not be gone into and that the order of acquittal cannot be reversed because such an order is not illegal. The other decision is one in Ramaswami v. Gopalan 1983 L.W. (Crl.) 21. where it was held that in a complaint case, when after the evidence of the prosecution witnesses was closed, the defence witnesses were examined and the case was posted for arguments the Court passed an order acquitting the accused as neither the complainant nor his advocate was present such an acquittal was legal and need not be interfered with.

u/s 256(l), Code of Criminal Procedure direction is given to the Magistrate to acquit the accused in case of non-appearance of the complainant. This is obviously for avoiding that a complainant, after setting into motion the criminal court, does not sleep over the matter and cause the case to remain on file for a long time. But at the same time it gives the power to the Magistrate, where he is of opinion that the personal attendance of the complainant is not necessary to dispense with the complainant''s attendance and proceed with the case. So, the normal course in case of the absence of the complainant will be acquittal, but when the interest of justice requires it, the Magistrate should use his judicial direction to proceed with the case on merits in the absence of the complainant. It is true that there will be nothing illegal technically in the Magistrate acquitting the accused on account of the absence of the complainant. But this course, when found to be against the interest of justice, would be necessarily wrong in the circumstances of the case and improper and has to be rectified. This is the conclusion which is to be drawn from the language in Section 256(l), Code of Criminal Procedure as well as from the decisions brought before me by the parties.

So, the question would turn to find out whether, in the present case, the Magistrate was justified in simply acquitting the accused on account of the absence of the complainant. The complaint was filed on 26th August, 1981. Though the matter is simple in nature, the case was called by the Magistrate 49 times. His first error was in not requiring both parties to adduce all their evidence on a single day each. In this case after the complaint was taken on file, summons was issued to the accused, charge was framed against him, evidence of the prosecution was completed, the accused''s version u/s 313, Cr.P.C, was recorded and two witnesses out of four listed by the defence were examined. The complainant was found absent four times, but had been present on all the remaining sittings. The last date on which any purposeful thing was done in this case was 7th January, 1984, when the second witness on behalf of the accused was examined. The matter was adjourned for further evidence by the accused on 4th February, 1984 on which date the complainant was absent and the witnesses on behalf of the accused were also not produced. On 13th March, 1984 the accused and the complainant were present, but the matter was adjourned at the request of the accused. The same course was adopted on four subsequent sittings. On 29th June, 1984 the complainant was absent and the accused was present. It was not recorded by the Magistrate that the witnesses of the accused were available, but, however, the Magistrate had chosen to acquit abruptly the accused u/s 256, Cr.P.C.

Taking into account the stage reached in the matter and the interest manifested by the complainant in prosecuting the case for about three years and also taking into account the fact that on four previous sittings when the complainant was present the matter was adjourned for additional evidence of the accused, I do not think that the Magistrate acted judicially in acquitting the accused for absence of the complainant. He should have dealt with the case on merits. Therefore, the order of the Magistrate is found not justified, it amounts to evasion of duty and the same is set aside. The matter is remitted back to the trial Court for fresh disposal, after giving due notice to both parties. The matter should be taken up very early and disposed of expeditiously.