State vs Manokaran and Others

S. Thangaraj, J.—The Assistant Inspector of Labour, Rasipuram, who was the complainant in S.T.R. Nos. 33, 34, 35, 37, 38, 39, 40, 41,

42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53 and 54 of 1988, has filed these appeals challenging the dismissal of those complaints u/s 256(1)

Cr.P.C. for the absence of the complainant on 29.1.1988 before the said Court.

The Assistant Inspector of Labour, Rasipuram, has filed these complaints before the Judicial Second Class Magistrate, Rasipuram, for offence

u/s 11(a) of the Tamil Nadu Shops and Establishments Act for having opened the business establishments on a weekly holiday. Learned Judicial

Second Class Magistrate, Rasipuram, had taken those complaints on file and the accused persons have appeared before the said Court. On

29.1.1988 when the matter was taken up, the complainant was absent and the Magistrate dismissed all those complaints u/s 256(1), Cr.P.C. The

Assistant Inspector of Labour, Rasipuram, has preferred these appeals against the order passed by the learned Judicial Magistrate.

Learned Public Prosecutor has argued that by dismissing all these complaints, for the absence of the complainant, the Magistrate has not

disposed of the matters of merits, and to substantiate the same, the learned Additional Public Prosecutor submitted certain rulings.

In Arumugham v. Valliammal and Ors. 1982 L.W.Crl. 89 this Court held that the real test, in such cases, is one of good faith. In that case, the

complainant was present when the case was called earlier and when it was called for the second time, he was absent as he had gone out to bring

his Counsel and at that time the case was dismissed for the absence of the complainant. In the special circumstances of that case as the

complainant was present when the case was called for the first time, this court had decided that the dismissal order passed by the learned

Magistrate was not justifiable.

In Anjali Porel Vs. Santosh Ghosh and Others, it was held by a Single Judge of the Calcutta High Court that such a dismissal was not justifiable on

two grounds. (1) that the appearance of the complainant on that date was unnecessary, (2) that the object of Section 256 is to see that the

complainant does not unnecessarily drag a criminal proceeding initiated at his instance.

In Major K. Mathew Scariah v. K.E. Mathai 1985 LW (Crl.) 225 this Court held

Taking into account the stage reached in the matter and the interest manifested by the complainant in prosecuting the ease 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.

Learned Public Prosecutor, by citing these three decisions argued that the dismissal of the complaints u/s 256(1) Cr.P.C. is not in accordance with

law and therefore the lower Court should be directed to have re-trial in all these matters by setting aside the order of acquittal passed on

29.1.1988. It is clear in Arumugham v. Valliammal and Ors. 1982 L.W.Crl. 89 this Court has taken the view because the presence of complainant

on that particular day was not necessary. In Anjali Porel Vs. Santosh Ghosh and Others, the Calcutta High Court has taken the view that the

presence of complainant was not very much necessary on that day and that acquittal u/s 256(1) Cr.P.C. has to be made only if the complainant

unnecessarily drags on the criminal proceedings initiated at his instance. In Major K. Mathew Scariah v. K.E. Mathai 1985 L.W. Crl. 225 this

Court has taken the view because the matter was posted for examination of defence witnesses and as the matter has reached the final stage of the

trial, the acquittal of the accused on the basis of non- appearance of complainant, was not justifiable. In the present appeals, these cases were

taken on file in the Register of Summary trial cases of the Judicial Magistrate, Rasipuram on 20.1.1988 and posted for the appearance of the

complainant and the accused on 29.1.1988. On that date, neither the complainant nor the accused persons in all the cases were not present, and

the Judicial Magistrate has invoked the provisions of Section 256(1), Cr.P.C. and acquitted all the accused. One may argue that the cases were

posted on 29.1.98 for the appearance of the accused and non-appearance of the complainant on the day was immaterial. To substantiate this

argument, they could rely upon three of the two rulings cited, the first ruling and the first ground of the 2nd ruling cited above. The Section 256(1),

Cr.P.C. is very clear and mere reading of the Section would solve the problem.

Section 256(1) Cr.P.C. reads - ""Non-appearance or death of complainant. If the summons has been issued on complaint, and on the day

appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not

appear, the Magistrate shall, notwithstanding anything herein before contained, acquit the accused, unless for some reason he thinks it proper to

adjourn the hearing of the case to some other day,

Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion

that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case.

However, this Court has unanimously held that when the Magistrate is empowered to pass the order of acquittal for the non-appearance or the

death of the complainant u/s 256(1), Cr.P.C. and the said provision is mandatory which is clear from the word ""the Magistrate shall"", the order of

acquittal passed by the Magistrate cannot be interfered with. Even under the old Code, the Magistrate has similar powers. In Natesa Naicker v.

Mari Gramani 60 L.W. 495 this Court held -

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 part.

In Tohkya v. Jaganna AIR 1949 Mad. 883 this Court held

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.

Basing reliance on these two decisions, this Court in Ramaswami v. Gopalan and Ors. 1983 L.W. (Crl.) 21 held that though those above two

decisions were rendered in cases of revision yet such observations are applicable in appeals also and further held that the acquittal of the

responded ''accused'' was not improper and was not incorrect.

In Narasimhamurthy v. Rangachari 1986 L.W. (Crl.) 289 this Court after going through a catena of decisions and analysing the various points

held-

When the Magistrate acted within his power and the order is not illegal, it would not be right for the High Court to interfere with the order of

acquittal, this Court should not interfere with the order of acquittal. The question is not whether there is any hardship to the complainant; but what

is the meaning of Section 247, Code of Criminal Procedure. For all these reasons, I am of the view that the order of acquittal passed by the

Magistrate is perfectly legal and competent and cannot be interfered with in this appeal merely because it would cause hardship to the appellant, in

view of the decision of the Division Bench of this Court in Tonka v. Jagannatha AIR 1926 Mad. 1009 : 24 L.W. 669 : 51 M.L.J. 730.

Since in the above decision Narasimhamurthy v. Rangachari 1986 LW (Crl.) 289 this Court has analysed the various decisions and has come to

the conclusion that the order passed by the Magistrate u/s 256(1), Cr.P.C. is perfectly legal and competent, such order cannot be interfered with.

Hence I respectfully follow the above decision and held that the order of acquittal passed by the Learned Magistrate u/s 256(1), Cr.P.C. is valid

and the appeals are liable to be dismissed.

In the result, C.A.Nos. 478, 479, 480, 482, 483, 484, 485, 486, 487, 488, 489, 490, 491, 492, 493, 494, 495, 496, 497, 498 and 499 of

1989 are dismissed.