Ramaswami vs Gopalan and Others

Maheswaran, J.—This appeal by a private party is against the order of the Judicial First Class Magistrate, Devakottai, acquitting the

accused for non-appearance of the complainant.

It is pointed out by the learned counsel for the appellant that a complaint was filed on 21st November, 1977 and a sworn statement was

recorded on 3rd January, 1978. The prosecution witnesses 1 and 2 were examined on 11th July, 1978 and P.W.3 was examined on 8th August,

1978 and the evidence for the prosecution was closed on 8th August, 1978. The case was posted to 23rd December, 1978 for examination of

defence witnesses and after examination of defence witnesses, the case was posted for arguments on 26th December, 1978. On that day, as there

was torrential rain, the complainant and his advocate could not be present in court and the court acquitted the accused for non-appearance of the

complaint.

Though the certified copy of the order does not clearly say whether the counsel for the accused was present or not, the original order written by

the Magistrate shows that the counsel for the complainant was also not present, No application for adjournment was presented and therefore, the

learned Magistrate acted under S. 256, Crl.P.C. It is now pointed out to me by the learned counsel for the appellant that the Magistrate, soon after

finishing the case, left the court as he was under; orders of transfer. He has filed an affidavit to that effect. But, the remarks of the Magistrate were

not called for on this affidavit and we are not in a position to say whether those allegations made in the affidavit are correct or not. It is pointed out

for the respondent by their counsel that there is no illegality in the order passed by the magistrate as the Magistrate is not bound to wait for the

complainant.

Natesa Naicker v. Mart Gramani 1947 M.W.N. Crl. 114 = 60 L.W. 495, was a case which arose upon a complaint filed by the petitioner

therein against the respondent in that case alleging commission of an offence under Ss. 447 and 426, I.P.C. That case was posted for hearing on

6th December, 1946. After examination of the complainant, it was adjourned to 16th December, 1946 for further evidence. On that day when the

case was called, the complainant was not present either in person or by pleader and the Magistrate acted under S. 47, Crl.P.C., (old Code) and

acquitted the respondent. The petitioner urged that he was present in court from 10 a.m. and just before the case was called, the advocate for the

accused sent him to fetch his vakil as the case was about to be called, that he immediately went to the civil court and brought him before the

Magistrate''s court, but in the meantime the case has been called and the respondent was acquitted. These allegations were refuted by the

respondent in that case. Yahya Ali, J., in dealing with the revision, observed:�

It will be apparent from the language of the section that when in a summons case, the complainant does not appear, it is imperative on the part of

the Magistrate to acquit the accused, unless there is a proper reason for adjourning the hearing of the case. It is not the case of the complainant that

there was any such reason of which the Magistrate was aware at the time he called the case and the complainant was absent. In those

circumstances, there was no discretion in the matter; the Magistrate was bound by the statute to acquit the accused. Where therefore an order has

been passed in conformity with statutory duty, it must be held to be a proper and correct order and there can be no question of revising such an

order merely because it would cause some hardship to the party.

I am in respectful accord with this view of the learned Judge.

In Tohkya v. Jaganna 49 Mad. 883, a Division Bench of this Court took the view that a Magistrate is entitled to call up a summons case at any

time of the day to which it is posted and to acquit the accused under S. 247, Crl.P.C . (old Code), if the complainant is not then present and that

he is not bound to wait for the complainant to appear at any time before the closing of the day in order to take up and dispose of a case

(Bracket�supplied). Waller, J. advises some latitude to be given to the complainant before the Magistrate decides to apply S. 247, but then the

learned Judge observed�

If, however, he decides to act at once, when a complainant fails to appear on his case being called on, I am clearly of opinion that he has

jurisdiction to do so and that he is not obliged to wait till the close of the court day before doing so.

Though these cases deal with revisions, yet, the observations in my view, can apply to cases in appeal also. It is, therefore, clear that the order

acquitting the respondent is not improper and is not incorrect. In that view, this appeal fails and is dismissed.