Calcutta High Court
Sm. Anjali Porel vs Santosh Ghosh And Ors. on 4 July, 1986
Equivalent citations: 1986CRILJ2110
JUDGMENT M.R. Mallick, J.
1. This is an appeal by the complainant against an order dt. 29-7-1983 passed by the Additional Chief Judicial Magistrate, Sealdah in Case No. C 234/83 under Section 256(1) of the Criminal P.C. acquitting the accused-respondents on the ground that the appellant was found absent on repeated calls.
2. The complainant-appellant filed a petition of complaint against the accused-respondents on 13-4-83 alleging that the appellant is a maid servant in the employ of Sri Anil Kumar Bhandary who is an Advocate practising in this Hon'ble Court. The respondents Nos. 2 and 3 are monthly tenants in respect of only one room in the ground floor of premises No. 4, Ram Ratan Basu Lane and one common bath-cum-privy and water tap in the ground floor. The accused-respondent No. 4 is a friend of the respondent No. 3 and often visits her. The accused-respondents who are of very bad temperament and for a long time were on bad terms with the master of the appellant and the member of his family over the use of the said common privy-cum-bath room and water tap on the ground floor. On April 3, 1983 at about 9.15 P.M. as soon as Anil Bhandary had arrived from his home town at Arambagh and reached the common courtyard of the said premises the respondents Nos. 2 and 3 started abusing the said Sri Bhandary. On hearing exchange of words the family members of Sri Bhandari came to the spot with Naren, servant of Sri Bhandari. The accused-respondent Santosh Ghosh came out of the tenanted room with a wooden stick and handed over the same to the respondent No. 2 Bulu Pal who struck the said Naren with it. When the appellant protested the respondent No. 2 Buki Pal jumped upon the appellant, embraced her and tried to molest her outraging her modesty Sri Bhandari at that time went out to report the matters to his neighbours to seek their help. At the intervention " 'he said neighbours the respondents restrained themselves but in the meantime the. said accused-respondents assaulted the appellant with wooden stick and fists and blows and further abused her with filthy language. Thereafter the appellant attended R.C. Kar Medical College and Hospital on the same day at about 11.20 P.M. for treatment of her injuries. Thereafter the appellant lodged a diary at the local police station and on April 13, 1983 when the police did not take any step in the matter the appellant filed a petition of complaint under Sections 323, 354 I. P. Code before the Additional Judicial Magistrate, Sealdah.
3. On 13-4-83 the learned Magistrate issued summons against the accused-respondents as a prima facie case has been made out under Section 232/3541.P.C. fixing 29-7-83 for service, return and appearance.
4. On 29-7-83 the accused-respondent appeared with their lawyers. As the complainant was found absent en repeated call even up to 11.35 the learned Magistrate acquitted the accused-respondents under Section 256(1) Cr. P. Code.
5. Being aggrieved by and dissatisfied with the said order of acquittal the present appeal has been prepared by the complainant on obtaining a special leave from this Court.
6. It is urged that the learned Magistrate acted illegally in passing the impugned order of acquittal as the learned Magistrate is empowered to adjourn the hearing of the case-to some other date if he thinks fit and proper to do so on proper reason, that the appellant is an illeterate girl having no knowledge of the procedure of court, that although she engaged a lawyer to conduct her case her lawyer did not inform her about the necessity of appearing before court on 27-7-83 and that the appellant should not be punished on account of the laches of his lawyer.
7. At the time of hearing the learned Advocate for the appellant did not appear. But Mr. Samir Chatterji appearing on behalf of the State has urged before me that the impugned order of the learned Magistrate passed on the date fixed for appearance of the accused-respodents was not a proper order and that on the date of the appearance of the accused there was no necessity for the complainant to remain present. Mr. Chatterji then argues that the date when the order was passed was not fixed for hearing of the case and that in the circumstances the impugned order is liable to be set aside. In support of his argument Mr. Chatterji referred to the decisions of the Karnataka High Court reported in 1981 Cr LJ 463 and also Calcutta High Court decision reported in 1983 Cr LJ S38.
8. I have carefully perused the record. It gathered from the original record that the learned Magistrate on considering the initial cjahar of the appellant-complainant issued process against the Santosh Ghosh and Bulu Pal under Section 323/354 1.P.C. and fixed 29-7-87 for service return and appearance. On 29-7-83 the accused persons appeared through their Advocate. That was the date fixed for appearance of the accused-respondents but the learned Magistrate did not take any steps to release the Accused-respondents on furnishing bonds to secure their future appearance and acquitted them on the ground that complainant remained absent on repeated calls till 11-35 A.M. In the case of Agricultural Produce Market Committee, Raichur v. C. S. Tandur Brothers reported in 1981 Cri LJ 463 the Division Bench of karnataka High Court relying on a decision of the Kerala High Court reported in 1978 Cri LJ 1376 has clearly analysed the provisions of Section 256(1) of the Criminal P.C. and its proviso. It has been clearly indicated that when the date was fixed by the learned Magistrate for taking the plea of the accused it was not a date fixed for hearing of the accused. It has also been observed that though recording of the plea of the accused may be considered as a part of the process as to hearing of the accused, the Magistrate is at liberty to split up the process of hearing as recording of plea and recording of evidence and that date fixed by the learned Magistrate cannot be regarded as a date fixed for hearing of the case and consequently in view of the provisions of the proviso the Sub-section (1) of Section 256 the Magistrate was not right in applying the said provisions and holding that because of the absence of the complainant and because there was no valid reason for adjournment of the case the accused is entitled to be acquitted. The decision of the Calcutta High Court reported in 1983 Cri LJ 1538 (Anar Bibi v. Habibur Rahaman) has also cleary taken the view that it was not proper to pass the order of acquittal on the ground of absence of the complainant on a date which was fixed for taking plea of the accused. In this particular case the case was not even fixed for taking plea of the accused. It was fixed for their appearance only and on the date of appearance the Magistrate should release the accused-respondents, if he thinks fit and proper, on furnishing bail bonds to secure their future appearance as both the offences were bailable. The learned Magistrate did not direct his attention to that mandatory provision but instead only for the non-appearance of the complainant on that date acquitted the accused Under Section 256(1) of the Cr. P. Code. The presence of the complainant was not very much necessary as the date was fixed for appearance of the accused persons only. In such circumstances the order of acquittal cannot be held to be proper. In the case of Vellaiyan v. Periyannan 1983 Cri LJ NOC 195 the Madras High Court has observed that in the case of acquittal on the ground of absence of the complaint the High Court will interfere with the acquittal order if circumstances of the case warrant in the interest of justice.
9. In this particular case I am firmly of the view that the complainant cannot be held to be at all negligent in prosecuting the case. The date on which the order of acquittal was passed was merely for the appearance of the accused persons. The complainant had nothing to do on that date. It is also true that the complainant has a duty to remain present on all the dates of hearing but for non appearance of the complainant on each and every date of hearing the order of acquittal under Section 256(1) Cr. P.C. cannot be justified. The object of Section 256 is to see that the complainant does not unnecessarily drag a criminal proceeding initiated at his instance. In this particular case the complainant cannot be held to be guilty of any laches on her part for prosecuting the case. Here in the case I see that the learned Advocate engaged by the complainant did not specifically intimate, her to remain present on that date and that is why she did not appear. The explanation given by her appears to be reasonable and propable. Only because her learned Advocate has not instructed her to appear before the court of the learned Magistrate on the date fixed for hearing of the accused the complainant should not be penalised. The magistrate has the discretion and he must use the discretion properly and not arbitrarily.
10. In the result I set aside the impugned order and direct the learned Magistrate to proceed with the case from the stage at which the impugned order has been passed.
11. This appeal is allowed and the case is sent back to the learned Magistrate for retrial as indicated.