Theruvai Govindamma vs There Chenchaiah and Others

This appeal is against the Order, 6-1-1994, passed by the Judicial First Class Magistrate, Satyavedu, dismissing the complaint, C.C. 102/1992, filed by the appellant-herein. The Order, dated 6-1-1994, passed by the learned Magistrate reads thus :

"Complainant called absent. A-1 present. There is no representation even after lunch. Therefore, complaint dismissed u/S. 256, Cr.P.C. and accused are acquitted. Their bail bonds shall stand cancelled".

A perusal of the docket orders passed by the learned Magistrate discloses that from 21-9-1993 onwards, when the case was posted for trial, the complainant/appellant was present in the court on a number of occasions, though she was occasionally absent. On the relevant date, i.e., 6-1-1994, the complainant was called absent and the private complaint filed by her was dismissed.

According to the learned Counsel for the appellant/complainant, the reason for her absence before the lower court is that she resides at a distance of 30 miles away from the court at Satyavedu, that on account of some agitation that was going on, on 6-1-1994, buses did not ply properly, and therefore she could not reach the court in time. The learned counsel for the appellant contends that the dismissal of the complaint filed by the appellant is not proper.

Learned counsel for the accused/respondents 1 and 2, however, contends that if the Magistrate exercises his discretion judicially in dismissing the complaint, the same shall not be interfered with by this Court, in appeal. In support of this submission, he relied upon the decision of a Division Bench of the Himachal Pradesh High Court in Jai Prakash Sharma Vs. Jagdamba Parsad and Others, wherein it was held that before a case is dismissed by reason of the absence of the complainant, the Magistrate should carefully consider (a) whether such an order is legal; and (b) whether it is justified by circumstances. There is no quarrel with the proposition laid down by the Himachal Pradesh High Court in the said decision. However, the said decision is not applicable to the facts of our case. In the said case, the complainant was present on a number of occasions and the trial of the said case was not taken up for some reason or the other, and not on account of the absence of the complainant. Therefore, the said decision of the Himachal Pradesh is distinguished, in the facts and circumstances of this case.

Having regard to the facts and circumstances, and also the fact that the complainant/appellant had attended the court on number of occassions after the case was posted for trial, this Court feels that the learned Magistrate ought to have given an opportunity to the complainant/appellant for proceeding with the trial of the case, by adjourning the case finally to any other date. The impugned order is not an order passed on merits of the case. In the circumstances, the appeal is allowed and the order, dated 6-1-1994, passed by the Judicial First Class Magistrate, Satyavedu, is set aside and the case is restored to his file. The learned Magistrate is directed to dispose of C.C. 102/92 afresh in accordance with law. The appellant/complainant shall get herself ready and proceed with the trial of the case, without seeking any further adjournments from the date fixed by the lower court, failing which the learned Magistrate may proceed with the case, as per law. The criminal appeal is allowed, as above.

Appeal allowed.