Subramani vs Sarangapani and Others

Padmini Jesudurai, J.—The complainant, whose case was disposed of for his absence u/s 256(1), Code of Criminal Procedure acquitting

the Respondents herein, has filed the above appeal challenging the acquittal.

The Appellant filed a private complaint against the Respondents, which was taken on file by the learned Judicial II Class Magistrate, Tirukoilur

as C.C. No. 298 of 1985 for offences under Sections 147, 448, 323 and 355, IPC. Summons were issued lo the Respondents and they appeared

on 4-10-85 and were given copies of the complaint. For further proceedings the case was posted to 9-10-85, on which date the Appellant was

absent, while the Respondents were all present. The learned magistrate acting u/s 256(1), Code of Criminal Procedure acquitted the Respondents,

against which this appeal is filed.

Thiru R. Balasubramaniam, learned Counsel appearing for the Appellant would urge that the trial Court was in error in invoking Section 256(1),

Code of Criminal Procedure on an adjourned date and the case was posted only for questioning the accused, on which date the Appellant is not

expected to be present and as such Section 256(1), Code of Criminal Procedure would not apply and the Appellant must be given an opportunity

to prosecute his complaint.

Per contra, Thiru S. Mahimairaj, learned Counsel appearing for the Respondents would contend that Section 256(1), Code of Criminal

Procedure contains no such limitation as suggested by the learned Counsel for the Appellant. On the contrary section 256(1), Code of Criminal

Procedure contains an imperative to the trial Court, that the complaint shall be dismissed, unless for reasons the learned Magistrate chooses to

adjourn the case, recording his reasons.

The question that arises for consideration in this appeal is as to whether the acquittal of the Respondents u/s 256(1), Code of Criminal

Procedure can be sustained?

The facts are not controverted. The complaint was taken on file on 23-9-85 and was posted to 4-10-85 for appearance of the Respondents.

On that day, all the Respondents appeared and copies of the complaint had been furnished to them and the case was posted to on 7-10-85 for

further proceedings. On 7-10-85 the Appellant was absent and the learned Magistrate recording that fact also observed that neither the Appellant

nor his counsel was present and that he was accordingly acquitting the Respondents u/s 256(1), Code of Criminal Procedure.

Section 256(1), Code of Criminal Procedure relates to procedure to be followed by the Magistrate during trial of summons cases. In the instant

case, all the offences for which the complaint had been taken on file, are relating to summons case and the provision of Chapter 20 containing

Section 256(1), Code of Criminal Procedure would apply. Section 256(1) is to the effect that if 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 contained in that Chapter, acquitted the accused unless for some reason, he thinks it proper to adjo(Sic) the hearing of the

case to some other day. A reading of the provision would show that even if the complainant is absent on the day when the case is posted for

questioning the accused, it is open to the Magistrate to acquit the accused u/s 256(1), Code of Criminal Procedure As rightly contended by the

learned Counsel for the Respondents, the provision contains an imperative that the accused shall be acquitted, unless there is a proper reason for

adjournment of the case. As to whether there is a proper reason or not, would be within the discretion of the learned Magistrate, with which this

Court ought not to interfere. It cannot therefore be said that Section 256(1), Code of Criminal Procedure would not apply to the hearing on 7-10-

1985 since it was only posted for questioning the accused. The learned Magistrate did not find any reason to adjourn the case in the absence of the

Appellant and he had chosen to act u/s 256(1), Code of Criminal Procedure to acquit the Respondents. I find no illegality or impropriety in the

order and the order of the learned Magistrate is confirmed.

In the result, the criminal appeal is dismissed.