Kerala High Court
M/S. Chettinad Cement Corporation Ltd vs The Proprietor on 4 April, 2014
Author: N.K.Balakrishnan
Bench: N.K.Balakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN
FRIDAY, THE 4TH DAY OF APRIL 2014/14TH CHAITHRA, 1936
CRL.A.No. 232 of 2012 ()
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AGAINST THE JUDGMENT IN Crl.L.P. 50/2012 of HIGH COURT OF
KERALA
AGAINST THE JUDGMENT IN ST 15/2011 of J.M.F.C.-III, NEDUMANGAD
APPELLANT(S)/COMPLAIANNT:
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M/S. CHETTINAD CEMENT CORPORATION LTD
18TH MILE, PALAMOODU.P.O. KORANI, ATTINGAL
THIRUVANANTHAPURAM. REPRESENTED BY ITS SENIOR
MARKETING MANAGER.
BY ADVS.SRI.V.G.ARUN
SRI.T.R.HARIKUMAR
RESPONDENT(S)/ACCUSED AND STATE:
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1. THE PROPRIETOR
M/S. RUGMINI STEELS, VATTIYOORKAVU
THIRUVANANTHAPRAM-695013.
2. THE STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR
HIGH COURT OF KERALA, KOCHI-31.
R1 BY ADV. SRI.R.V.SREEJITH
R2 BY PUBLIC PROSECUTOR SRI. RAJESH VIJAYAN
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04-
04-2014, ALONG WITH CRA NO. 448/2011, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
[CR]
N.K.BALAKRISHNAN, J.
............................................
Crl. Appeal Nos. 448/2011
& 232 of 2012
............................................
Dated : 4th April 2014
JUDGMENT
The complainant in S.T. Case No. 15 of 2011 on the file of the JFCM - II, Nedumangad is the appellant in Crl.Appeal No. 232 of 2012. The complainant in C.C. No. 11/2010 died. His wife was impleaded. She is the appellant in Crl. Appeal No. 448/2011.
2. The accused therein were acquitted by the learned Magistrate under Sec. 256 (1) Cr.P.C., since the complainants were absent on the day to which the case was posted. It is vehemently argued by the learned counsel for the complainants/appellants that those cases were not posted for hearing and so the acquittal of the accused under Sec. 256 (1) Cr.P.C. is illegal and unsustainable. The Crl.AppealNos.448/2011 & 232of2012 2 learned counsel has relied upon the decision of this Court in Joseph v. State of Kerala - 2010 (4) KLT 697.
3. Chapter XX of Cr.P.C. deals with trial of summons cases by Magistrates. Sec. 251 says that when in a summons-case the accused appears or is brought before the Magistrate, the particulars of the offence of which he is accused shall be stated to him, and he shall be asked whether he pleads guilty or has any defence to make, but it shall not be necessary to frame a formal charge. Section 251 applies to a summons case instituted on a police report and also a case instituted otherwise than on a police report.
4. Section 252 says that if the accused pleads guilty, the Magistrate shall record the plea as nearly as possible in the words used by the accused and may, in his discretion convict him soon. In other words, it is not mandatory that accepting the plea of guilt made by the accused the Magistrate should convict the accused. Section Crl.AppealNos.448/2011 & 232of2012 3 253 is a similar provision which deals with conviction on plea of guilty in petty cases.
5. Section 254 says that if the Magistrate does not convict the accused under Section 252 or section 253, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution,and also to hear the accused and take all such evidence as he produces in his defence.
Sec. 256 of Cr.P.C. reads thus:
"256. Non -appearance 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 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 casse.
(2) The provisions of sub-section (1) shall, so far as the case may be, apply also to cases where the non-appearance of the complainant is due to his death".
6. The main thrust of the argument advanced by the Crl.AppealNos.448/2011 & 232of2012 4 learned counsel for the complainant is that there should be a specific posting for "hearing" in any case instituted on a private complaint. The words occurring in Sec. 256 (1) "or any day subsequent thereto to which the hearing may be adjourned", are to be understood in the context in which it is used. Section 254 (1) says that the Magistrate shall "proceed to hear the prosecution". But the words do not end there. The section further says " and take all such evidence as may be produced in support of the prosecution". It does not say that there should be a separate posting of the case "for hearing".
7. The word "hearing" appears in the last part of Sec. 256 (1) of Cr.P.C. also. The proviso to Sec. 256 (1) also makes it clear 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 Crl.AppealNos.448/2011 & 232of2012 5 proceed with the case.
8. Now the questions for consideration are as to what is the meaning of the term "hearing" which appears in Secs. 254 and 256 (1) of Cr.P.C. and whether Section 254 (1) of the Code contemplates any specific adjournment/posting of the case for "hearing" the prosecution and thereafter to adjourn the case for evidence. In this context it is profitable to understand the meaning of the term "hearing".
9. The word "hearing" is not defined in the Code. In Stroud's Judicial dictionary of Words and Phrases (7th Edition: South Asia Edition 2008: Volume II:Page 1182), the word "hearing" is defined as "hear" a cause or matter means to hear and determine it. Unless there be something which by natural intendment, or otherwise, would cut down the meaning. I apprehend there can be no doubt that the legislature, when they direct a particular cause to be heard in a particular court, mean that it is to be Crl.AppealNos.448/2011 & 232of2012 6 heard and finally disposed of there.
10. In Black's Law Dictionary (8th Edition, Second Re Print 2007: Page 737) the term "hearing" is defined as "a judicial session usually open to the public held for the purposes of deciding issues of facts or law, sometimes with examination of witness.
11. Though the facts of the case are different it is profitable to refer to the meaning of the expression "hearing" given by this Court in Abraham v. Additional Collector of Customs - 1976 KLT 660 where it was held :
"When expression such as 'hearing' or opportunity to be heard are used in legislation, they usually denote a hearing at which oral submission and evidences are to be tendered. Each person must have a reasonable opportunity of knowing the charges against him, of controverting of those charges and of leading his own evidence".
It was further held :
"When statutes specifically provide for an opportunity of being heard they generally imply an oral hearing. When expressions such as "hearing" or "opportunity to be heard" are used in legislation, they usually denote a hearing at which oral Crl.AppealNos.448/2011 & 232of2012 7 submissions and evidence are to be tendered. (See S.A. de Smith, Judicial Review of Administrative Action, Third Edition Page 177). As already stated each person must have a reasonable opportunity of knowing the charges against him, of controverting those charges and of leading his own evidence. The word "hearing" employed in Sec. 254 of Cr.P.C. is not intended to have a separate adjournment for hearing alone after the appearance of the accused but it includes the taking of the evidence of the prosecution and also the taking of evidence for defence for the purpose of deciding the issues of facts and laws concerning the subject matter of prosecution in that particular case. Sec. 254 of Cr.P.C. applies to a case instituted upon a police report and to cases which arise otherwise than on a police report whereas Section 256 applies only to a prosecution instituted otherwise than on a police report. There is nothing in Sec. 254 to indicate that the word "hearing" is intended to a specific adjourned date after the appearance of the accused. On the contrary, Section 254 clearly shows that it includes the entire proceedings till the final Crl.AppealNos.448/2011 & 232of2012 8 determination of the fact in issue. The word "hearing" is used in a different context and it does not say that after the plea of the accused is recorded, there should be a posting for hearing/argument for the prosecution and the accused. That would be reading something into the Section which is not intended by the legislature.
12. In Sivaraman Achari v. Aggarwal and Another - 1979 KLT 319 it was held by this Court that three courses are open to the court in case complainant is absent; namely; the Magistrate may (1) acquit the accused or (2) adjourn the case to 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 should be left to the discretion of the Magistrate. No doubt, the Magistrate is expected to exercise that discretion judiciously and in a judicial manner. Therefore, it is clear that the power under Section 256 can be exercised at any stage. In other words, going by the aforesaid provisions it Crl.AppealNos.448/2011 & 232of2012 9 is clear that there is nothing in Sec. 254 to indicate that a separate stage of hearing is contemplated after the appearance of the accused and after the accused pleaded not guilty to the charge. There is nothing in Sec. 256 of the Code to hold that the power conferred thereunder cannot be exercised after the stages contemplated under Section 251, 252 , 253 and 254 of Cr.P.C.
13. It is pertinent to note that in Joseph v. State of Kerala (cited supra) the Magistrate exercised the power under Sec.256 Cr.P.C. when the case was posted for judgment. It admits of no doubt that the presence of the complainant was not required or essential on that date since the evidence required to be produced on the side of the complainant had already been produced. On such a hearing date after the evidence was adduced, the presence of the complainant was not at all necessary. Therefore, the order of acquittal passed by the learned Magistrate in that case invoking Sec. 256 (1) Cr.P.C. was Crl.AppealNos.448/2011 & 232of2012 10 illegal.
14. Two other decisions reported in Govindan Nambiar v. Chitambareswara Iyer - 1961 KLT 797 and State of Kerala v. Abraham- 1962 KLT 35 can also be referred to here. In Abraham's case the Magistrate acquitted the accused under Sec 256 Cr.P.C. since the complainant was absent when the case was called. The complainant appeared in court within a few minutes after the case was called but even before that the learned Magistrate passed an order acquitting the accused under Sec. 256 (1) Cr.P.C. There can be no doubt that simply for the reason that the complainant is not seen when the case is called the Magistrate cannot mechanically acquit the accused applying Sec. 256 (1) Cr.P.C. No ratio was laid down in Abraham's Case or Govindan Nambiar's case (cited supra) that the power under Sec. 256 can be exercised only when the case is posted for "hearing" or that such a hearing should be made after the plea of the Crl.AppealNos.448/2011 & 232of2012 11 accused is recorded and before posting the case for evidence.
15. Dealing with Sec. 247 of the Old Code which is corresponding to Sec. 256 of the present Code it was held by this Court in Govindan Nambiar's case (supra) that the said provision is intended to prevent dilatory tactics on the part of the complainant and consequent harassment of the accused persons and that the power under this Section has to be used judicially and judiciously and not in a manner that makes the remedy worse than the disease. It was further held that it is not proper to throw out a case in a hasty or thoughtless manner when the complainant has proved his bonafides and shows himself vigilant in prosecuting the accused.
16. Kunjumon v. Kotha and Others - 1962 KLJ 1065 was a case where the complainant was late to reach the court on the date of hearing. One of the accused was absent on that date and applications were filed by the other Crl.AppealNos.448/2011 & 232of2012 12 accused persons for adjournment of the case. Still the trial court acquitted the accused availing the provision contained in Section 247 Cr.P.C. (Old Code). In the appeal, it was observed by this Court that instances are not rare where Magistrates have exhibited a tendency to clutch at the jurisdiction vested in them as a shortcut to obtain quick and easy disposal. It was held "The Magistrates will do well to bear in mind that "despatch is a good thing but to do justice is better". The decision in Govindan Nambiar (supra) was followed by this Court in Bhageerathi Ramamania v. Radhamma - 1971 Crl.L.J. 115 .
17. The gist of the decision in Joseph vs. State of Kerala (2010(4) KLT 697) is : If the accused in a summons case pleads not guilty or/and makes his defence as contemplated u/s. 251 of Cr.P.C, the court shall without fail post the case to `hear' the prosecution as stated in section 256 (1) of Cr.P.C and `hear' the prosecution. Crl.AppealNos.448/2011 & 232of2012 13 Acquittal u/s.256 (1) of Cr.P.C is permissible either on the day appointed for the appearance of the accused or on the day subsequent thereto to which the `hearing' may be adjourned, and on no other day. Such day of `hearing' is the day falling in between the day fixed for the appearance of the accused (and recording of plea) and the day to which the case is posted for evidence u/s.254 (1) of Cr.P.C. Once the case is posted for evidence u/s.254 (1) of Cr.P.C, the court shall under no circumstance acquit the accused u/s.256 (1) of Cr.P.C.
18. For what purpose a case should be posted for `hearing' after recording of the plea of the accused and before the case is posted for evidence? In Joseph's case it is stated that there is a purpose for `hearing' the prosecution at the early stage of the case. The purpose is stated at paragraph 19 of the judgment. Paragraph 19 reads thus:
"If the accused puts forward his defence before the court that the allegations in the complaint do not constitute Crl.AppealNos.448/2011 & 232of2012 14 any offence or that there is no sufficient ground to proceed against him for some or other reason like want of sanction or because of a mistake in the address shown in the summons etc, and if it appears to the court that there are no sufficient grounds to proceed against the accused, principles of natural justice demands that the opposite party shall be heard. That is why the legislature has laid down in sec.254 (1) of the Code that the court shall `hear' the prosecution".
The view taken in Joseph's case is not acceptable for two reasons. First, if at all an opportunity as stated in that decision is to be given to the accused, it shall be given before the particulars of the offence are stated to him and his plea is recorded u/s. 251 of Cr.P.C. Secondly, even if the accused establishes that the allegations in the complaint do not constitute any offence or that there is no sufficient ground to proceed against him for some or other reason and even if it appears to the court that there are no sufficient grounds to proceed against the accused, the Magistrate would be helpless since he cannot acquit the accused under Sec. 256 (1) of Cr.P.C. if the complainant is Crl.AppealNos.448/2011 & 232of2012 15 present. The Magistrate can acquit the accused u/s.256 (1) of Cr.P.C only if the complainant is absent. On no other ground the Magistrate can acquit the accused u/s. 256 (1) of Cr.P.C. In GFS Chits and Loans Pvt. Ltd vs. V.K.Rajesh (2006 (3) KLT 825) it was held (by the same Hon'ble Judge) that the court can acquit the accused u/s. 256 (1 ) of Cr.P.C only on one ground, viz.
"non-appearance of the complainant". When that be so, no purpose would be served in `hearing' the prosecution or the accused at a stage after the recording of the plea and before the posting of the case for evidence if the complainant is present in court.
19. In Joseph's case (cited supra) at paragraph 21 it is observed that if the accused makes a valid defence that there are no sufficient grounds to proceed against him, in appropriate cases, the complainant himself will understand the futility of a trial and he may drop out and even withdraw the case or remain absent. It is also stated that in such Crl.AppealNos.448/2011 & 232of2012 16 event the proceedings in an appropriate case can be terminated at the early stage of the trial itself in accordance with law by invoking Sec.256 (1) of Cr.P.C. Court cannot assume that the complainant will absent himself so as to enable the Magistrate to acquit the accused under Sec. 256 (1) Cr.P.C., the learned counsel for the respondent submits. On that day of "hearing" if the complainant is present how can the Magistrate acquit the accused under Section 256 (1) Cr.P.C. is another pertinent question which will remain unanswered if the view taken in Joseph's Case (cited supra) is accepted.
20. Take a case where a complainant at the `hearing' referred to in Joseph's case understands the futility of trial. He can absent himself from court only on the day to which the case is adjourned after the so called `hearing'. Going by paragraph 21 of the judgment in such an event the proceedings in an appropriate case can be terminated at the early stage of the trial itself in accordance with law Crl.AppealNos.448/2011 & 232of2012 17 by invoking section 256 (1) of Cr.P.C. But the dictum laid down in Joseph's case is that acquittal u/s.256 (1) of Cr.P.C is permissible only on either of two days, namely, (i) the day appointed for appearance of the accused if summons has been issued or (ii) any day subsequent thereto to which the `hearing' may be adjourned. If on the day to which the case is adjourned "for hearing" if the complainant is present how can the accused be acquitted under Sec.256 (1) of Cr.P.C. ? How does it reconcile wih the observation made in Joseph's case ? Therefore, it is argued that paragraph 21 of the judgment in Joseph's case is contrary to the dictum laid down therein.
21. The expression `hearing' is not defined anywhere. What Sec.254 (1) of Cr.P.C provides is that the Magistrate who does not convict the accused u/s. 252 or 253 of Cr.P.C shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution, and also to hear the accused and take all such evidence as Crl.AppealNos.448/2011 & 232of2012 18 he produces in his defence. The section does not contemplate that the Magistrate who proceeds to hear the prosecution and take all such evidence as may be produced in support of the prosecution shall on the same day hear the accused and take all such evidence as he produces in his defence. That is not practicable also. Only on completion of prosecution evidence the Magistrate can hear the accused and take all such evidence as he produces in his defence. The section does not contemplate that the Magistrate shall pass any order after `hearing' the prosecution and before taking the evidence produced by the prosecution. What Section 254 (1) of Cr.P.C insists on is only that the prosecution or, as the case may be, the accused shall state its or his case before adducing evidence. Or.XVIII r.2(1) of CPC is an almost identical provision, which states that on the day fixed for the `hearing' of the suit or any other day to which the `hearing' is adjourned, the party having the right to begin shall state his case and produce his evidence in Crl.AppealNos.448/2011 & 232of2012 19 support of the issues which he is bound to prove. The words `any day subsequent thereto to which the hearing may be adjourned' appearing in Section 256 (1) of Cr.P.C only mean any of the subsequent days to which the case is adjourned.
22. Associated Cement Company Ltd vs. Kesavanand (AIR 1998 SC 596) was a case filed u/s.138 of the N.I Act. There, the trial court acquitted the accused u/s.256 (1) of Cr.P.C. In that case, two witnesses were examined on the side of the complainant and the case was posted for further evidence, on which day the complainant was absent. The learned Magistrate recorded an order of acquittal u/s. 256 (1)of the Code on the next day, since the complainant and his counsel were absent on that day also. The Hon'ble Supreme Court considered the purpose of including a provision like Sec.247 in the old Code (Sec.256 in the new Code). The Supreme Court has stated thus:
"What was the purpose of including a provision like S.247 in the Crl.AppealNos.448/2011 & 232of2012 20 old Code (or S.256 in the new Code). It affords some deterrence against dilatory tactics on the part of a complainant who set the law in motion through his complaint. An accused who is per force to attend the Court on all posting days can be put to much harassment by a complainant if he does not turn up to the Court on occasions when his presence is necessary. The Section, therefore, affords a protection to an accused against such tactics of the complainant. But that does not mean that if the complainant is absent, Court has a duty to acquit the accused in invitum" (para 17).
23. The Apex Court considered as to when could the Magistrate acquit the accused u/s.247 of the old Code (Sec.256 (1) of the new Code) on the ground of non- appearance of the accused. Paragraph 18 of the judgment reads thus:
"Reading the Section in its entirety would reveal that two constraints are imposed on the Court for exercising the power under the Section. First is, if the Court thinks that in a situation it is proper to adjourn the hearing then the Magistrate shall not acquit the accused. Second is, when the Magistrate considers that personal attendance of the complainant is not necessary on that day the Magistrate has the power to dispense with his attendance Crl.AppealNos.448/2011 & 232of2012 21 and proceed with the case. When the Court notices that the complainant is absent on a particular day the Court must consider whether personal attendance of the complainant is essential on that day for the progress of the case and also whether the situation does not justify the case being adjourned to another date due to any other reason. If the situation does not justify the case being adjourned the Court is free to dismiss the complaint and acquit the accused. But if the presence of the complainant on that day was quite unnecessary then resorting to the step of axing down the complaint may not be a proper exercise of the power envisaged in the section. The discretion must, therefore, be exercised judicially and fairly without impairing the cause of administration of criminal justice" (para 18).
24. S. Anand v. Vasumathi Chandrasekhar - AIR 2008 SC 1296 was a case where the accused was prosecuted for the alleged commission of an offence under Sec. 138 of N.I.Act. Witnesses on behalf of the prosecution had been examined and the evidence on the side of the complainant was closed. A date was fixed for examination of the defence witness and argument. The accused then filed an application for cross-examination of Crl.AppealNos.448/2011 & 232of2012 22 the complainant herself. That petition was rejected as against which revision petition was filed in the Court of Session. No order of stay was passed in that case. It was contended that the accused had been present before the trial Court, but the complainant remained absent. Later, an application was filed by the accused for his acquittal on the ground of absence of the complainant. That petition was allowed and the learned Magistrate acquitted the accused under Sec. 256 (1) Cr.P.C. Appeal filed before the High Court was allowed. It was noticed that before allowing the appeal the accused was not given notice.
25. It was contended before the Apex Court that it was obligatory on the part of the advocate to appear on the date of hearing. The accused was appearing in person and was present in Court on all the dates of hearing. It was observed by the Apex Court that on the date fixed for examining the defence witnesses even in Crl.AppealNos.448/2011 & 232of2012 23 the absence of the complainant the accused could have examined his witnesses, if he wanted to do the same . Therefore, the appearance of the complainant was not necessary. It was also noted that in fact the complainant did not get herself examined as a witness in that case. But she was sought to be summoned again for cross- examination. That petition was not allowed. But it was held by the Apex Court that it did not mean that the court could exercise its discretionary jurisdiction under Sec. 256 of the Code at that stage . It was then held by the Hon'ble Supreme Court that the presence of the complainant or her lawyer would have been necessary only for the purpose of cross-examination of the witnesses in the presence of the complainant. If she did not intend to do so she would do so at her peril, but it cannot be said that her presence was absolutely necessary. It is also seen observed that when the prosecution has closed its case and the accused has been examined under Sec. 313 Crl.AppealNos.448/2011 & 232of2012 24 of the Code, the court was required to pass a judgment on the merit of the matter.
26. It may be noted that in the above cases, the Supreme Court did not hold that Sec. 256 (1) of Cr.P.C could be invoked only at a particular stage or could not be invoked after a particular stage. The purpose of including a provision like Sec.247 in the old Code/Sec.256 in the new Code is considered in Associated Cement Company's case (supra) and the said purpose can never be achieved if Sec.256 (1) of Cr.P.C can be invoked only on either of the two days referred to in Joseph's case. What it means when the Supreme Court holds that Sec.256 (1) of Cr.P.C may be invoked to acquit the accused on the ground of absence of the complainant only if the personal attendance of the complainant is essential for the progress of the case is that the accused can be acquitted u/s.256 (1) of Cr.P.C at any stage of the case, when the personal attendance of the complainant is essential. Usually the personal attendance Crl.AppealNos.448/2011 & 232of2012 25 of the complainant is essential for the progress of the case only at the stage of evidence, but what is held in Joseph's case is that the accused cannot be acquitted u/s. 256 (1) of Cr.P.C when once the case is posted for evidence. The purpose of incorporation of Sec.256 in the new Code has been explained by the Supreme Court. What has been held in Joseph's case is hence not in agreement with the dictum laid down by the Supreme Court.
27. Govindankutty Menon vs. Chandy - (AIR 1955 TC 31 - Division Bench) was a case where the Magistrate after recording the entire evidence posted the case for hearing the arguments. On that day the complainant was absent and therefore the accused was acquitted u/s.247 of Cr.P.C (old Code). It was held that the Magistrate had the power to invoke Sec.247 as the complainant was absent when the case came up for final hearing. In the aforesaid decision of the Divison Bench of Travancore Cochin High Court it was held that the Crl.AppealNos.448/2011 & 232of2012 26 accused can be acquitted under Sec. 247 of the Old Code (corresponding to Sec. 256 of the New Code) on the day the complainant was absent even in a case where the entire evidence was adduced but that is against the decision of the Supreme Court cited supra. At the same time, the aforsaid decision of the Division Bench of Travancore Cochin High Court can be relied upon to hold that there need not be a specific posting for "hearing", before the case is posted for evidence and that it can be invoked at any stage. That decision does not say that once the case is posted for evidence, the accused cannot be acquitted under Sec. 256 (1) Cr.P.C.
28. As has been observed in the various decisions on the point, the learned Magistrates are to be reminded of the fact that while exercising the discretion they should not forget that their very existence is for dispensation of justice but within the frame work of the statutes governing particular cases. A complainant usually approaches the Crl.AppealNos.448/2011 & 232of2012 27 court with a case because the accused committed wrong to him. Though there may be cases where the complaints are filed only to cause harassment to the accused, that can only be stated as an exception. Magistrate cannot proceed on the premise that complaints are filed only to cause harassment to the accused. While maintaining the presumption of innocence of the accused, the court should not be harsh or hasty in disposing such complaints availing of the provision under Section 256 (1) Cr.P.C. totally disregarding the injustice that may be caused to the complainant. The endeavour of the court should be to advance justice and not to deny it. It cannot be forgotten that there may be host of reasons for the absence of the complainant when the case is called. Either he might have been held up due to heavy traffic block or because the vehicle was held up at a level - cross (Railway gate). The fact that there used to be a huge crowd in the veranda and at the entrance door of the court which prevents the Crl.AppealNos.448/2011 & 232of2012 28 complainant from entering the court on time are not matters which the Magistrate can lose sight of. The court should be cautious of such situations as well. The fact that the complainant was absent on an earlier date also may not in all cases be a reason to invoke the provision under Sec. 256 (1) Cr.P.C. If the case is posted for recording the evidence, the better course would be to pass over the matter and not to immediately invoke Sec. 256 (1) Cr.P.C. solely for the reason that the complainant could not enter the court hall when the case is called. There may be variety of reasons for his inability to enter the court hall or to reach the court on time. There may also be cases where the counsel appearing for the complainant could not be present in court either because he was engaged in another court or because of other reasons. True that the counsel is expected to make arrangements to represent the matter in court. But for the fault or lapses on the part of the counsel, a genuine complaint cannot be thrown out. There Crl.AppealNos.448/2011 & 232of2012 29 is a propensity to see that the pendency is reduced by adopting such shortcut disposal resorting to Sec. 256(1) Cr.P.C. It cannot be justified. But at the same time, the view that under no circumstance, Sec. 256 can be applied if the case is posted for evidence and that only if the case is posted for "hearing" and if only on that day the complainant is absent, the case can be disposed of under Sec. 256 (1) Cr.P.C. is something which is not discernible from the provision. Therefore, the pragmatic view would be that though the Magistrates can invoke the provision under Sec. 256 (1) Cr.P.C. to acquit the accused for the absence of the complainant on the day the case is posted for recording evidence or on the day when the actual presence of the complainant is essential for the due prosecution of the matter, a case cannot be simply disposed of under Sec. 256 (1) Cr.P.C. unless the court is satisfied that the absence of the complainant was deliberate and that his absence was only to protract the proceedings to cause Crl.AppealNos.448/2011 & 232of2012 30 harassment to the accused.
29. There may be cases where the presence of the complainant is totally unnecessary. If it is a case where warrant was issued against the accused for securing his presence and if the complainant had taken steps to issue process/warrants against the accused then on the date to which the case stood adjourned the presence of the complaint may not be necessary. There would be no justification for the Magistrate to insist on the presence of the complainant on such dates. It is not the physical presence of the complainant that is required. What is required is whether steps have been taken by or on behalf of the complainant for the due prosecution of the matter. Therefore, the insistence on the part of the Magistrate requiring presence of the complainant on all the posting dates cannot be justified.
30. It is also seen that because of the directions issued by this Court in Joseph's Case (supra) Magistrates Crl.AppealNos.448/2011 & 232of2012 31 are adopting an illegal procedure by acquitting the accused under Sec. 255 (1) Cr.P.C. noting "the complainant is absent, no evidence is adduced" and thus after dispensing the examination under Sec. 313 Cr.P.C. acquitting the accused under Sec. 255 (1) Cr.P.C. The course so adopted by the learned Magistrates cannot be justified at all. The acquittal of the accused under Sec. 255 (1) would arise only when the complainant adduces evidence and the court holds that the evidence adduced by the prosecution/ complainant is not satisfactory so as to enter a verdict of conviction against the accused.
31. It is pointed out that there are instances where even after the complainant has given evidence in support of the prosecution on a subsequent date, only for the absence of the complainant, the accused was acquitted under Sec. 256 (1) Cr.P.C. obviously oblivious of the fact that the physical presence of the complainant was not necessary for the further prosecution of the matter since Crl.AppealNos.448/2011 & 232of2012 32 the evidence on the side of the complainant was already on record. As held by the Apex Court in the case cited supra if the accused examines any witness and if the complainant does not cross-examine, it would be at the peril of the complainant. But that is no reason to say that the Magistrate can exercise the jurisdiction under Sec. 256 (1) Cr.P.C.
32. The upshot of my discussion is that there is always the discretion vested in the Magistrate to invoke the power under Section 256 (1) Cr.P.C. but that discretion should be exercised judiciously and in a judicial manner taking into account all aspects. Acquitting the accused on the first hearing date when the accused is to appear on summons for the simple reason that the complainant is absent was deprecated several times. The complainant approaches the court to redress his grievance. The endeavour of the court must be to do justice to the parties and not to throw out a complaint at the threshold on Crl.AppealNos.448/2011 & 232of2012 33 technical grounds. Such a shortcut disposal cannot be justified at all.
33. It is also submitted that there are instances where even after the evidence of the complainant was adduced the Magistrate applies the provision under Sec. 256 (1) Cr.P.C. to acquit the accused. If evidence has already been adduced the Magistrate can acquit the accused only under Sec. 255 (1) Cr.P.C. It is for the complainant to take the risk of not adducing the entire evidence required for the successful prosecution. The word "hearing" cannot be given a different meaning than what is discernible from the provisions. In a summons case instituted on a private complaint after the plea of the accused is recorded if the accused pleads not guilty the case has to be posted for evidence. If the complainant does not produce the evidence in support of his complaint and if he continuously absents himself and does not adduce evidence the acquittal under Sec.256 (1) Cr.P.C. will be Crl.AppealNos.448/2011 & 232of2012 34 justified.
34. It is argued by the learned counsel for the respondent that there should be a posting for hearing and after hearing if the case is posted for evidence, the case cannot be disposed of under Sec. 256 (1) Cr.P.C. even if the complainant does not come forward to give evidence is not the law that can be discerned from the provisions contained in Sec. 254, 255 and 256 of Cr.P.C. The observation made in Joseph's case that the complainant himself may be satisfied of the futility of pursuing the litigation and he may either withdraw the case or may remain absent also cannot be accepted, the learned counsel for the respondent submits. If as stated earlier, the complainant is present on the date of hearing, the court cannot acquit the accused under Sec. 256 (1) Cr.P.C. since acquittal of the accused under Sec. 256 (1) Cr.P.C. arises only if the complainant is absent and not on any other grounds. There cannot be a repeated posting for hearing Crl.AppealNos.448/2011 & 232of2012 35 only to see that the complainant does not appear on a particular day so as to invoke the provision under Sec. 256 (1) Cr.P.C. Suppose the complainant appears on all the dates posted for hearing and thereafter when the case is posted for evidence the complainant continuously absents himself and is not adducing evidence at all what can the court do ? Can the Magistrate keep the case file for years or decades together is the pertinent question posed by the learned counsel. Even if the complainant knows that it would be a futile exercise to proceed with a case but still if he appears throughout, can the Magistrate invoke the power under Sec. 256 (1) Cr.P.C. ? These questions will remain unanswered if the view taken in Joseph's Case (supra) is accepted.
35. It is rightly submitted by the learned counsel that after the accused pleaded not guilty in such a case, the acquittal of the accused can be only under Sec. 255 (1) or 256 (1) Cr.P.C. as the case may be, and there is no other Crl.AppealNos.448/2011 & 232of2012 36 provision in between to order acquittal of an accused on the ground of absence of the complainant or otherwise.
36. It is pointed out by the learned counsel that in Joseph's case(supra) it is held that if there is no proper reason to adjourn the case for hearing and the court does not acquit the accused under Sec. 256 (1) Cr.P.C. it shall post the case for evidence as stated in Sec. 254 (1) and once the case is posted for evidence under Sec. 254 (1) of the Code under no circumstance the court shall acquit the accused under Sec. 256(1) Cr.P.C. which is totally against the spirit of the provisions contained in Sec. 256 (1) Cr.P.C. It is not stated in the decision as to what should the procedure to be followed by the Magistrate if on the day posted for evidence and on subsequent days to which it is adjourned, the complainant is not letting in evidence. Though Sec. 255 (1) is resorted to, that is illegal for the reason aforementioned.
37. In S.T. Case No. 15/2011 which is the subject Crl.AppealNos.448/2011 & 232of2012 37 matter of Crl. Appeal 232/2012, the learned Magistrate acquitted the accused under Sec. 256 (1) Cr.P.C. stating that the case was posted for hearing and evidence as last change. But the complainant was not present. It was stated that on the last posing date also the complainant was not present. The learned counsel for the appellant/ petitioner submits that the complainant was present on the previous 10 posting dates and the Complainant Company was actually represented by the Advocate. It is also stated that the case was originally pending before the JFCM - II Nedumangad and subsequently it was transferred to JFCM- IV , Nedumangad. Later, the complainant came to know that the case was transferred to JFCM III Nedumangad with a direction to post the case on 3-10-2011. The complainant was not aware of that posting date or the transfer of the case to JFCM-III Nedumangad. It is not a case where the complainant was absent on previous occasions before the case was transferred to JFCM-III, Crl.AppealNos.448/2011 & 232of2012 38 Nedumangad. Hence, taking note of all those aspects, it can be found that the absence of the complainant was not deliberate and therefore, the acquittal under Sec. 256 (1) Cr.P.C. is to be set aside and the complainant has to be given opportunity to let in evidence.
38. In the result, Crl. Appeal 232/2012 is allowed. Verdict of acquittal under Sec. 256 (1) Cr.P.C. is set aside and the case is remanded to JFCM-III, Nedumangad. Parties will appear before that Court on 6-6-2014.
39. In C.C. 11/2010 which is the subject matter of Crl. A. 448/2011, the original complainant died during the pendency of the case and subsequently his wife was allowed to prosecute the matter. It is seen that the cause title was not corrected. The order of acquittal was passed by the learned Magistrate under sec. 256 (1) Cr.P.C. on 6- 11-2010 stating that the case was posted for evidence as last chance and that the complainant was absent. It was stated that even on earlier occasions the complainant was Crl.AppealNos.448/2011 & 232of2012 39 absent. The contention that since the present complainant is the wife/the legal heir of the original complainant, the case cannot be disposed of under Sec. 256 (1) Cr.P.C. even when the complainant is absent continuously cannot be accepted at all. There is no difference, whether the complainant is the legal heir of the deceased complainant or whether it is the original complainant himself. The question is whether the complainant was deliberately absenting herself without letting in evidence in support of the case stated in the complaint. However, I find it is just and proper that the complainant is given an opportunity to let in evidence. But the complainant should see that the she produces all the evidence at the earliest within the time that would be fixed by the learned Magistrate so as to avoid further delay in the matter. Hence, this appeal is allowed. Verdict of acquittal under Sec. 256(1) Cr.P.C. is set aside and the case is remanded to the trial court for fresh disposal.
Crl.AppealNos.448/2011 & 232of2012 40
40. The parties will appear before the Court below on 6-6-2014.
41. Hence to sum up:-
(i) In the light of the decision of the Supreme Court in Associated Cement Company Ltd vs. Kesavanand (AIR 1998 SC 596) and other cases referred to above, the argument advanced by the learned counsel relying on Joseph's case that the case should be posted for hearing after the plea of the accused is recorded and before the case is posted for evidence and that the accused can be acquitrted under Sec. 256 (1) Cr.P.C. only if the complainant is absent on the day so posted for "hearing", cannot be accepted.
(ii) Similarly, in the light of the decisions of the Supreme Court and other decisions referred to above, the argument based on Joseph's Case (supra) that once the case is posted for evidence the Magistrate cannot acquit the accused under Sec. 256 (1) Cr.P.C. even if the complainant is absent continously also cannot be accepted as the good law.
(iii)The observations made in Joseph's Case are
Crl.AppealNos.448/2011
& 232of2012
41
not in agreement with the decisions of the
Supreme Court in Associated Cement
Company Ltd. vs. Kesavanand (AIR 1998 SC
596) and other cases.
(iv)As held by the Hon'ble Supreme Court if the complainant is absent on a day posted for the evidence or when the presence of the complainant is absolutely essential and if the complainant does not appear without valid reason and if the Magistrate does not proceed to adjourn the hearing of the case to another date, the acquittal of the accused would be justified.
(v) The Magistrates should always be cautious and should take note of all the factors and circumstances referred to in the earlier paragraphs before disposing the case under Sec.
256 (1) Cr.P.C.
(vi)When no evidence is adduced and when the complainant is not present and is not ready to let in evidence, the Magistrate cannot acquit the accused under Sec. 255 (1) Cr.P.C., since the aquittal of the accused under Sec. 255 (1) Cr.P.C. can be done only upon taking the evidence as mentioned in Sec. 254 of the Code and if the Crl.AppealNos.448/2011 & 232of2012 42 Magistrate does not find the accused guilty. The acquiuttal in such cases can only be under Sec. 256 (1) Cr.P.C.
Dated this the 4th day of April, 2014.
Sd/-N.K. Balakrishnan, Judge.
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