Sowbagyam vs Kaliamurthi

K.N. Muddiyar, J.—The complainant is the Petitioner. She filed a complaint on 21st February 1968 and she gave the sworn statement on the same day before the Sub-Magistrate, Mayuram. Her complaint was for an offence u/s 323 I.P.C. Her SWORN; statement was recorded on 21st February 1968. The case was adjourned to 4th March 1968. The Sub-Magistrate called the case for hearing on 4th March 1968 to which date the case was earlier adjourned.

In these circumstances, Mr. Sridevan argued that under the appellate power vested in this Court the suffiolesey of the reason for the absence of the complainant-Petitioner may be "gone into and the order of acquittal may be reversed and further enquiry may be directed. The learned Counsel cited before me a number of decisions, some of which alone need merit my attention. In the Division Bench decision in Nagarambilli Tonkya Vs. Matta Jagannatha and Others, Devadass J. considers elaborately the position of law in the case before them and concluded in the following language:

This case has been referred to a Bench by Wallacs J. by reason of the view taken by Jackson J. in Crl. R. C. 229 of 1925. In that case, Jackson J. held that Section 247 must be strictly interpreted and the appearance of the complainant during any portion of the day was sufficient compliance with Section 247 With great respect, I am unable to agree with that view. We should not consider the hardships that may be caused to the complainant in construing the section. Instructions may be given to Magistrates not to dismiss cases u/s 247 unless they are satisfied that the complainant is keeping out of the way and to wait for a reasonable time to enable the complainant to appear, but the absence of such instructions would not be a ground for giving a forced construction to the very clear words of the section. The view of Jackson J. is opposed to the view taken by Hytchins J. in Kuttiyal v. Pari Makri (1884) 7 Mad. 356. There the learned Judge overruled the contention that the Magistrate should wait till the close of the day before he could act u/s 247, it is next contended that on the merits, the Petitioner is entitled to have the order of the Magistrate set aside. The Petitioner appeared with his witnesses at 11-30 a.m and it is alleged that the case was taken up and dismissed five minutes before the appearance of the complainant. Though the Magistrate could very well have waited for a short time, it cannot be said that the order of the Magistrate is illegal. He acted within his powers and when the order is not illegal, it would not be right for this Court to interfere with it.

It is seen from this decision that since the year 1884 as evidenced by the two rulings in Rangaswami Iyengar v. Narasimhan by Nayak and Kuttiyalli v. Pari Matri and others I. L. R. 1884 7 Bom. 213. 356 the law has been settled and the practice has been uniform in consonance with the view expressed by Devadoss and Wallace, JJ. Yahya Ali, J. also followed the Bench decision of this Court In Natesa Naicker Vs. Mari Gramani and Another, and held that the view expressed by Jackson, J. was contrary to the prevailing judicial opinion. The learned Judge sums up the. position of law in the following language:

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.

In view of the reasoning in this paragraph, it is not contended before me by Mr. Sridevan that the Magistrate was aware at the time he called the case of any such reason for adjourning the hearing of the case. But the facts In Periasami v. State 1962 M. W. N. Cri. 19 have no similarity or identity with the facts of the case. Buj Sadasivara. J. sums the position very clearly. 6. In the following language while considering the above case:

But the above decision is no authority for the position that a Magistrate should acquit an accused u/s 247, Code of Criminal Procedure. It is clear from the decision in that case that the witnesses and police officers did not turn up for six hearings of the case and the Magistrate acquitted the accused after intimating the final hearing of the case to the police. Section 247, Code of Criminal Procedure no doubt enjoins on the Magistrate to acquit the accused for the nonappearance of the complainant. But it also gives power to the Magistrate to adjourn the hearing of the case to some other day for proper reasons.

In another decision in Muthukumarasami v. Salaimalai Perumal 1967 L. W. Crl. 15. the case was adjourned to a Sunday and this question came to be considered again he learned Judge observes:

Even though Section 247 Code of Criminal Procedure enjoins on the magistrate to acquit the accused for nonappearance of the complainant, it also gives power to the magistrate to adjourn the case for proper reasons and the proviso enables a Magistrate to dispense with personal attendance of the complainant when it is not necessary and the conviction of the accused even in the absence of the complainant is not illegal.

Mr. Sridevan places a strong reliance on the ruling in K. Papi Reddi Vs. P. Lakshmi Narayana and Another, and argued on the basis of the reasoning found In paragraph 4 of the said judgment that it is open to this Court to examine the sufficiency of the cause assigned by the complainant for her absence In the court when the case was called on for hearing and to set aside the order of acquittal, if the reasons assigned by the complainant for his absence were found to be satisfactory. Mr. Sridevan further relied on a decision in Mohd. Yamin Vs. Zafar Mohammad and Others, and argued that in view of the proviso to Section 247 Code of Criminal Procedure which provides for dispensing with the personal attendance of the complainant, the order of the Court below is not proper. I am afraid this proviso is not helpful to the case of the complainant for her examination for the proof of the complainant was not over by that time and this proviso cannot be called in aid at all so far as the matter is in the form of an appeal before this Court. He argues that this may be reversed on the basis of the sufficiency of reason for her absence. This argument is very attractive. In view of the binding nature of the Division Bench decision in Nagarambilli Tonkya Vs. Matta Jagannatha and Others, which has settled the law traced from the year 1884, which view has been holding the field in this Court-there is no compelling need for me to embark on the sufficiency of the reason for the absence of the complainant or otherwise.

Mr. Sridevan argued further that this Court has interfered with an order of acquittal in an appeal in Crl. Ap. No. 298 of 1967. In this case, when the case was called by the Presidency Magistrate, the son of the complainant made representation to the fact that the complainant had gone cut to fetch his counsel. This is a reason which a Magistrate is bound to take note of judicially, when the case was called and the complainant was absent. The circumstance of this case would fall squarely within the ratio of the decision of Yahya Ali J. which may be expressed in this language:

It is not the case of the complainant that there was no such reason of which the magistrate was aware at the time he called the case and the complainant was absent.

The appeal came to be considered within the ambit of judicial precedent extracted by me as above.

To conclude I held the view that though the Magistrate could very well have waited for a short time, it cannot be said that the order of the Magistrate is illegal. He acted within his powers and when the older is net illegal, it would not be right for this Court to interfere with it. Whether the proceeding is one by way of appeal or revision is of no consequence in view of the terms of Section 247 Code of Criminal Procedure.

The appeal is dismissed.