N.R. Janardhanam vs Manjula Panneerselvam

K.P. Sivasubramaniam, J.—This appeal arises out of the order passed by the learned Chief Judicial Magistrate, Chengalpattu, in C.C. No. 9 of 1990, dismissing the complaint on the ground that the complainant was not present either in person or by Pleader and thus acquitting the accused under S.256 of Code of Criminal Procedure.

The complaint filed by the appellant herein before the Magistrate Court was under S. 138 of Negotiable Instruments Act against the respondent. According to the Magistrate when the case was called on the appointed date, the complainant was not present and hence the order was made under S.256 of Code of Criminal Procedure.

Along with the appeal an affidavit has been filed on behalf of the complainant/appellant herein. In the affidavit it is stated that during all the previous hearings he was appearing and that only on 14.6.1990 he did not appear before the Trial Court and a petition was filed along with the medical certificate, the petition was allowed and the case was adjourned to 20.6.1990. It is next contended that on 20.6.1990 though he was not well he wanted to appear before the Court. He traveled from Maduranthagam to Chengalpattu by bus. On the way the National Highways-45 road widening works were going on. On that day there was a traffic jam near Padalam Diversion Road and also Killiyar bridge. It is further stated that unfortunately on that day the bus in which he traveled reached Chengalpattu delayed by more than 30 minutes and that he reached the Court at 11.30 a.m. In the meantime the case had been called and the accused had been acquitted for the reason that the complainant was not present. The complainant has also stated that his counsel also could not be present in Court since he had left for his village in connection with the sudden death of one of his relatives. No counter has been filed by the respondent to the said affidavit.

The learned counsel for the respondent opposed the appeal mainly on the basis of some of the decisions of this Hon''ble Court as mentioned below. The learned counsel refers to the judgment of K.N. Mudaliyar, J. in Sowbagyam v. Kaliamurthi (1990 L.W.(Crl.) 97). The counsel for the respondent relies on the observation in the judgment that the order of the Magistrate acquitting the accused under S. 247, Code of Criminal Procedure, (old) in view of the absence of the complainant cannot be said to be illegal. The Magistrate had acted within his powers and when the order was not illegal it would not be right for this Court to interfere with it. The learned counsel for the respondent also refers to the judgment of K.M. Natarajan, J. reported in 1986 L.W. (Crl.) 289 (Narasimhamtirthy K. v. K.S. Rangachari). In the said judgment the learned Judge has relied on the judgment of the Division Bench of this Court reported in AIR 1926 Mad 1009 (Nagarambilli Tonkya v. Matta Jagannatha and Others) and has ultimately held that the view of the Division Bench was binding on the Single Judge. According to the learned Judge, the Division Bench has held that so long as the Magistrate had acted well within his powers and when the order was not illegal it would not be right for this Court to interfere with it.

The learned counsel also relied on a judgment of Mrs. Padmini Jesudurai reported in 1991 L.W. (Crl.) 65 (Subramctni v. Sarangapani and five Others). Reference is made to the observation of the learned Judge that S.256(l) Code of Criminal Procedure contains an imperative that the accused shall be acquitted unless there is proper reason for the adjournment of the case and as to whether there is a proper reason or not it would be within the discretion of the Magistrate with which this Court ought not to interfere. On the basis of the ruling contained in the aforesaid judgment the learned counsel for the respondent had opposed any interference by this Court as against the order passed by the learned Chief Judicial Magistrate.

The learned counsel for the appellant on the other hand refers to the judgment of Rathinavel Pandian,J. reported in 1983 L.W.(Crl) 164. In the said judgment the learned Judge has held that though it was true-that the High Court will not interfere with the kind of orders passed under S.256 of Code of Criminal Procedure, if the circumstances warrant the interference by the High Court, this Court would be justified in setting aside the order made under S. 256, Code of Criminal Procedure. In the said judgment the learned Judge went into the circumstances relating to the facts of the case and held that the facts and circumstances really warrant interference with the order of acquittal in the interest of justice.

Reference is also made to the judgment of Rengasamy, J. reported in 1994 2 L.W. (Crl.) 761 (M/s. Cheran and Company v. P.K. Chandrabose). The learned Judge after considering the various decisions cited before him has ultimately held that the High Court cannot refuse to interfere with the order of the lower Court merely on the ground that the learned Magistrate has used his discretionary'' power and that if any acceptable reasons have been given by the complainant for the absence of the counsel and himself and the same has also not been seriously disputed, this Court could not refuse to interfere. The learned counsel for the respondent keenly relied on the judgment of KM. Natarajan, J. reported in 1986 L.W. (Crl.) 281 as mentioned above in which the learned Judge has made reference to the earlier judgment of the Division Bench and has thus held that the views of the Division Bench was binding on him.

In this context it is pertinent to note that the Division Bench has nowhere stated that the High Court will have no powers to interfere with the order made under S.256 of Code of Criminal Procedure, if appropriate grounds are urged before the High Court for the absence of the complainant. The circumstances under which the Division Bench delivered its judgment cannot be lost sight. It was a case on a reference of difference of opinion between the two learned single judges, as would be clear from the judgment of Devadoss, J. one of the judges who constituted the Division Bench. The following extract would be relevant.

This case has been referred to a Bench by Wallace..., by reason of the view taken by Jackson, J., in Crl. R.C. No. 229 of 1925. In that case Jackson. J., held that S. 247 must be strictly interpreted and the appearance of the complainant during any portion of the day was sufficient compliance with S. 247. With great respect, I am unable to agree with that view.

Therefore the entire issue which was referred to the Division Bench was as regards whether the Magistrate was obliged to wait till the end of the day before he had passed an order under S.256(old) 247 of Code of Criminal Procedure. Nowhere in the judgment of the Division Bench has it been stated that the High Court will have no power to interfere in the order passed by a Magistrate dismissing the complaint. The Bench was called upon to decide only that particular issue as stated earlier and the Bench answered that the Magistrate was not obliged to wait till the end of the day and therefore the order cannot said to be illegal. The ratio decided by the Division Bench is only to the said extent and cannot be used to contend that the High Court has no power to interfere with the order of the Magistrate under any circumstances.

In Bindeshwari Prasad Singh Vs. Kali Singh, the question arose as to whether the Magistrate having passed an order dismissing the complaint can himself restore the complaint. In the said case after holding that the Magistrate had no jurisdiction to do so, the Supreme Court went further to state that the remedy of the respondent was to move either the Sessions Judge or the High Court in revision. The Supreme Court considered the issue as to whether the Magistrate has any inherent power and on a comparison between S.561 A of the Criminal Procedure Code and S.151 of CPC held that unlike the Subordinate Civil Courts which had been vested with inherent powers under S.151 CPC the Subordinate Criminal Courts had no such inherent powers. S.561 A Cr. P.C. confers such inherent powers only on the High Court and the High Court alone. Having said so the Supreme Court held as follows:

In these circumstances therefore the learned Magistrate had absolutely no jurisdiction to recall or dismiss the complaint. The remedy of the respondent was to move the Sessions Judge or the High Court in revision.

The said judgment was followed by the Supreme Court in another case reported in Maj. Genl. A.S. Gauraya and Another Vs. S.N. Thakur and Another, .

Therefore the contention of the counsel for the respondent that under no circumstances the High Court can interfere with the order of the Magistrate made under S.256 of Code of Criminal Procedure, cannot be sustained. In the affidavit filed by the petitioner in the present case apart from having stated that except for one hearing, the complainant had been regular in attending the Court, sufficient reasons has also been given by the applicant for his absence on that particular day. No counter affidavit has been filed by the respondent. Traffic jam, uncertainties involved in the public transport system, etc., are the order of the day and to throw out the process of law. merely on the absence of a party just at the time when the case is called for, would render the administration of justice meaningless. A chronic defaulter can be easily distinguished by a reference to the case diary. There is no reason why the case could not be passed over and called again and immediately after the lunch session before the final orders are passed. In fact in the judgment of the Division Bench itself on which a strong reliance is based upon by the counsel for the respondent, Waller, J. has observed as follows:

I can myself see nothing in the section that prevents a Magistrate from so doing. Indeed, I think that, as a rule, he would be well advised to give a complaint, whose case is called on early in the day, some latitude before he decides to apply S. 247.

But since the Bench was called upon to decide about the correctness of the view as to whether the Magistrate was obliged to wait till the end of the day the Bench answered the Reference in the negative. This is not to be taken as holding that the High Court will not interfere under any circumstances.

Therefore having regard to the uncontroverted reasons given by the complainant for not having appeared before Court on the relevant date, I hold that this is a fit case in which the High Court should use its discretion to set aside the order of the learned Magistrate.

Under these circumstances the above appeal is allowed and C.C. No. 9/1990 is restored to the file of the learned Chief Judicial Magistrate, Chengalpattu. The learned Magistrate is directed to take up the complaint on file and to dispose of the same at the earliest having regard to the fact mat the complaint is of the year 1990. The above appeal is allowed.