State of Haryana vs Ram Singh

V.S. Aggarwal, J.

By this common judgment, the bunch of Criminal Revision Nos. 368 of 1994, 369 of 1994, 370 of 1994, 371 of 1994, 372 of 1994, 373 of 1994, 374 of 1994, 375 of 1994, 376 of 1994 and 377 of 1994 can conveniently be disposed of together. All these petitions involve an identical and common question and facts are not different.

Certain complaints had been filed under the Shops and Commercial Establishment Act through the Labour Inspector, Hissar while the others were filed under the Minimum Wages Act. The Chief Judicial Magistrate recorded the presence of the Labour Inspector and issued summons to the accused. In most of the cases, the summons were not received back on the date fixed or were unserved. They were directed to be issued afresh. On the date fixed in individual cases, the Labour Inspector did not appear. The learned Chief Judicial Magistrate waited till 3.35 p.m. Thereupon the order was passed that none is present for the complainant and the complaint was dismissed under Section 256 of the Code of Criminal Procedure.

Aggrieved by the said order, the present revision petitions have been filed.

Learned counsel appearing on behalf of State of Haryana urged that the trial court had no jurisdiction to dismiss the complaints under Section 256 Cr.P.C. and further contended that in any event, the order of the trial court is not justified and should be set aside.

Section 256 of the Code of Criminal Procedure refers to situations when the complainant does not appear. It reads :

"256. Nonappearance or death of complainant.

(1) 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 hereinbefore 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.

(2) The provisions of subsection (1) shall, so far as may be, apply also to cases where the nonappearance of the complainant is due to his death."

Under the relevant provisions once the summons have been issued on the complaint, then on any subsequent date if the complainant does not appear, the Magistrate can dismiss the complaint. The net result of such situation is that it amounts to acquittal of the accused. However, the Magistrate if he thinks proper may adjourn the hearing to some other date. It is obvious from aforesaid that the Magistrate has to take care as to whether in the facts, it would be appropriate to dismiss the complaint, to acquit the accused or to adjourn the case to some other date.

The first contention raised by the learned counsel for the State was that in cases under the Minimum Wages Act, the Magistrate could not dismiss the complaint. In support of his claim reliance was placed on the decision State of Gujarat v. Dr. C.K. Patel, 1992(1) LLJ 825. Therein also the complainant was absent. The learned Judicial Magistrate dismissed the complaint and acquitted the accused. The Gujarat High Court came heavily on the tendency of adjourning the cases again and again and ignoring the directions of Section 309 Cr.P.C. In paragraph 4 it was observed :

"It is indeed a matter of sheer regret that a simple thing like recording the plea of the accused could not take place for a year and then months and thereafter also for other two years, the proceedings went on drifting aimlessly. Such sort of situation simply reflects upon the lack of will and duty on the part of the trial Court to proceed expeditiously ahead with trials in utter disregard of the interests of the workers and object of the statute. This also incidently sadly reflects upon the trial Court of its total unawareness of the provisions contained in Section 309 of the Code pertaining to the manner as how trial proceedings are to be conducted and controlled. No doubt, sometimes, the cases deserve to be adjourned from time to time in over all and larger interests of justice and, therefore, granting of reasonable adjournments are quite within the discretion of the trial Court, but at the same time, while exercising such discretion, the Court cannot be permitted to altogether ignore directions given in Section 309 of the Code, which aims at the expeditious trials by regulating and controlling the undue frequencies of adjournments. No cases should ordinarily be adjourned without the reasons for the same being recorded. Not only that but in appropriate cases, on justifiable grounds, the trial Courts are duty bound to award costs so as to control the dilatory tactics of the recalcitrant parties. Accordingly, the cases where unjust absence of the complainant causes undue hardship and inconvenience to the other side, the trial Court can meet with the said situation by awarding costs, if need be, by frequently awarding such costs in order to control such recalcitrant complainant enforcing him to appear before the Court. In fact, cases involving beneficial social pieces of legislation, require special and adequate care to be taken by the trial Court and that ordinarily should not permit itself to resort to easy premature acquittals under Section 256 of the Code on the ground of the absence of the complainant throwing the grievances of the aggrieved labourers to the wind".

I am afraid it will not be possible to substantiate to the view that in cases involving social pieces of legislation in different standard or rule should be applied. The law must remain for all and apply in equal terms. A difference should not be made about the grievance of the labourer or any other person. That by itself would be violating the spirit of law. Section 256 of the Code of Criminal Procedure would apply to all in a similar fashion once the complainant is absent. To hold otherwise would permit the complainant in certain set of complaints to abstain at will or would appear when so choose. The contention, therefore, that in such like circumstances, the complaint could not be dismissed, necessarily must be repelled.

Reverting back to the facts, it has to be considered as to whether in the peculiar facts and circumstances, the trial court shall justify in dismissing the complaint or not. The real test in such like matters always is of good faith. It has to be seen whether the complainant was absent for any good reason or not. Attention of the Court was being drawn towards the decision from Orissa High Court in the case of Nityananda Samal v. Naraprasad, 1982 Crl.L.J. 927. In the cited case the cognizance was taken of the offence. Summons had been issued. The case was adjourned for a particular date. On that date, the complainant was absent. By 12.00 noon the learned Judicial Magistrate dismissed the complaint and acquitted the accused. By 1.15 p.m. the Advocate had appeared alongwith the witnesses for recalling the order. It was these facts which prompted the said Court in paragraph 5 to hold :

"In the instant case, the date on which the order of acquittal was passed was the date of hearing and the presence of the appellant and his witnesses was necessary. As the record of the court would show, the appellant was found to be absent on repeated calls. He had not filed his Hazira and no step had been taken by him. The learned Magistrate had not proceeded with the case hurriedly in the beginning of the day. As his order would indicate, till past 12 noon, the appellant had not appeared on calls. It was for these reasons, which had been recorded by the learned Magistrate in the body of the order, that he did not consider it to be expedient to adjourn the case and he passed the order of acquittal. The learned Magistrate had, therefore, properly exercised his discretion and being cognizant of the fact that he had the discretion to adjourn the case, did not do so for the reason stated in the order. While it is true that an order of acquittal passed under Section 256 of Criminal P.C. would bar a fresh trial and would cause irreparable injury to a complainant, such an order can, in fit and appropriate cases, be passed if the complainant is not vigilant and has not come in time to the court when the case is called on for hearing. If, as submitted before this Court, the appellant was, in fact, present when the case was called on, he could inform the court that he would go and call his advocate. There was no material on record that the court had been informed about the presence of the appellant at the time the case was called on for hearing. As the record of the learned Magistrate would show, the appellant and his advocate came to the court as late as at 1.15 p.m. and an application for recalling the order of acquittal was made. After due exercise of his discretionary power, the learned Magistrate, instead of adjourning the case, had recorded an order of acquittal. The order, therefore, could not be said to be a nullity. The learned Magistrate certainly did not go wrong in rejecting the application made by the appellant to recall the order of acquittal which had been passed after due consideration".

It is obvious from the above quoted passage that absence of the complainant or his counsel does not automatically put to an end. One finds itself in agreement with the ratio of the decision, but as would be noticed, the facts of the present revision petitions are different. Herein there is nothing to indicate that during the day, the complainant ever appeared. The petitioner cannot take advantage of the said case.

In that event reliance was placed on the case of C.K. Sivaraman Achari v. D.K. Agarwall and another, 1978 Crl.L.J. 1376. In that case on the date fixed, the complainant was not present. The accused who was present requested for an adjournment. The Court acquitted the accused. It was alleged that when the date was fixed, the complainant and his counsel had noted 27.10.1976. These facts came up for consideration as to whether the order dismissing the complainant has to be set aside or not. It was held that three courses are open and are noted in paragraph 10 :

"Under the section as it now stands three courses are open to the court in a case where the complainant is absent on the date of hearing. The Magistrate may (1) acquit the accused or (2) adjourn the case for a future date or (3) dispense with the attendance of the accused and proceed with the case. Which course is to be followed in a particular case is entirely left to the discretion of the Court which discretion, however, is expected to be exercised in a judicial manner. While exercising the discretion, the courts should not forget that their very existence is for dispensation of justice, no doubt within the framework of the Statutes governing particular cases. But even such Statutes should be availed of with a view to advance justice and not to deny it. A complainant usually approaches the court with a case that he has been wronged by the accused. While maintaining the presumption of the innocence of the accused, the Court should not be harsh towards the complainant. Absence of the complainant on a particular day when the case was called could be for umpteen reasons".

Subsequently, it was further held :

"In such cases even though the Magistrate is not bound by the provisions of the Statute to do so, there is nothing wrong in adjourning the case to another date so that he may satisfy himself that the absence of the complainant was not due to lack of diligence. Or if the complainant''s presence is not required on the particular day, he may dispense with his attendance and proceed with the case. In all such cases, the Magistrate is expected to take stock of the whole situation before he uses his discretion and decides the course to be followed. He should not view the absence of the complainant as a shortcut for disposal of the case."

In other words, the Kerala High Court concluded that Magistrate is expected to take stock of whole situation and exercise the discretion. The complaint should not be dismissed as a short cut of disposal of the case.

Reverting back to the facts of the present case, it is clear that both these precedents do not come to the rescue of the petitionerState. There is nothing to indicate that on the date fixed, that at any time during the date fixed the concerned Labour Inspector had appeared. There is nothing further to show that what was the compelling reason that the said Inspector did not appear before the Court. It cannot be that a person files the complaint and then abstains at his sweet will. Unless there are some cogent reasons. It will not be proper to find fault with the order of the trial court. Even the decision rendered by this Court in Criminal Revision No. 100 of 1995 decided on 21.3.1996 will not help the petitionerState. In that case there was an exemption granted to the petitioner for appearance. It was that factor which weighted with this court, coupled with fact that complaint without recording special reasons should not be dismissed. It is not so in the present case. Therefore, there is nothing to set aside the order passed by the trial court.

Keeping in view the aforesaid, it becomes unnecessary to give reasons if revision petition was maintainable or it was necessary to file appeal against the said order. For these reasons, the revision petitions being without any merit fails and are dismissed.