Andhra Pradesh High Court - Amravati
Takoor Niranjan Singh, vs Purushotham Balakrishna, on 2 August, 2022
HON'BLE SRI JUSTICE RAVI CHEEMALAPATI
CRIMINAL REVISION CASE No.494 of 2009
ORDER:-
Feeling aggrieved by order dated 04.02.2008 passed by the learned II Additional Judicial Magistrate of First Class, Eluru, West Godavari in Crl.M.P.No.1224 of 2007 in C.C.(SR) No.454 of 2006 connected to Crime No.142 of 2006 of the Eluru I Town L&O Police Station, whereby the protest petition filed by the complainant was rejected for non prosecution, the complainant preferred this Criminal Revision Case under Section 378 of the Code of Criminal Procedure.
2. The facts that led to filing of this Criminal Revision case, in brief, are as follows:
The petitioner herein/complainant filed private complaint under Sections 190 and 200 Cr.P.C. against the respondents 1 to 9 herein on the file of the Court of the learned II Additional Judicial 1st Class Magistrate, Eluru for the offences punishable under Sections 415, 418, 420 and 423 of Indian Penal Code and the learned Magistrate referred the said complaint to Eluru I-Town L&O Police Station for investigation under Section 156(3) of the Code of Criminal Procedure. Pursuantly, Eluru I-Town L&O Police Station registered the same as a case in Cr.No.142 of 2006. Later, Eluru I Town L&O Police served a notice on the complainant stating that the complaint referred to them is of 'civil nature'. Aggrieved thereby, the 2 complainant filed protest petition in Crl.M.P.No.1224 of 2007 on the file of the Court of the learned II-Additional Judicial 1st Class Magistrate, Eluru under Rule-83 of Criminal Rules of Practice. On 04.02.2008, when the protest petition came up before the Court below, the complainant was called absent and there was no representation,the complaint was rejected and final report accepted, under docket order dated 04.02.2008
3. Assailing the said orders dated 04.02.2008, the complainant preferred this Criminal Revision Case under Section 378 of Code of Criminal Procedure, contending that the impugned order is contrary to law, weight of evidence and probabilities of the case; that the Court below erred in not taking note of the fact that either the complainant or his counsel is present on all the previous occasions since 2006 and prayed to set aside the default dismissal order and restore the protest petition to file.
4. Heard Sri A. Rajendra Babu, learned counsel for the petitioner and Ms.Sangeetha Reddy, learned counsel for the respondents 1 to 9 and the learned Special Assistant Public Prosecutor for the 10th respondent-State.
5. Sri A.Rajendra Babu, learned counsel for the petitioner, in elaboration, contended that for singular default in appearance of the complainant, the Court below, without reference to the previous conduct of the Complainant or his counsel in appearing the Court 3 since the year 2006, erred in dismissing the protest petition filed by the revision petitioner. Hence, prayed to allow the Criminal Revision Case by setting aside the default dismissal order and restore the protest petition to file.
6. On the other hand, Ms. Sangeetha Reddy, learned counsel for the respondents 1 to 9 has contended that the protest petition ought to have been filed under Section 190 of Code of Criminal Procedure, however, the same has been filed under Rule 83 of Criminal Rules of Practice and hence the same is liable to be dismissed.
7. The reason offered by the revision petitioner for his absence is that the petitioner was a bit late on that day and he was very prompt in attending the Court on previous occasions right from the year 2006. The impugned order passed by the Court below does not contain any reasons for rejecting the complaint. For convenience, the same is extracted hereunder:
"Final Report Received. Complainant is absent. No representation. Complaint is rejected. Final report accepted. Issue proceedings."
8. As rightly contended by the learned counsel for the petitioner, the impugned docket order does not refer to the previous attendance or absence of the complainant. The impugned order does not demonstrate as to whether the absence of the complainant 4 is singular default in appearance on that day or it was a repeated and recurring act.
9. For brevity, Section 256 of Cr.P.C. is extracted hereunder:
"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 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 sub-section (1) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death."
10. A plain reading of the above Section makes it clear that, if complainant does not appear, the Magistrate may adjourn the hearing of the case to some other day for some reason he thinks it proper and in case he finds no proper reason for adjourning the matter, he shall acquit the accused. Thus, absence of the complainant does not ipso facto entail dismissal of the complaint and only if the Magistrate in his discretion thinks that there are no grounds to adjourn the hearing of the case to some other day, then only he shall acquit the accused.
11. The impugned judgment is very cryptic and it does not contain the purpose of listing of the case on that particular day, the requirement of the presence of the complainant and the circumstances that compelled the learned Magistrate to reject the complaint instead of adjourning the hearing of the case and the said order lacks the said particulars. According to the petitioner, he was a bit late on the date of adjournment, which seems reasonable. Thus, the learned Magistrate has adopted a very 5 unjust attitude resulting in failure of justice. The judgment did not even record the presence or otherwise of the complainant on the previous dates of adjournments. Thus, it is evident that the learned Magistrate in a casual and routine manner passed the judgment under Section 256 of Cr.P.C., which is not proper.
12. The only objection raised by the learned counsel for the respondents 1 to 9 is misquoting the provision of law. It is a well established principle of law that mere misquoting provision of law would not entail dismissal of the petition.
13.In the decision in Azeem vs. A.Venkatesh1, their Lordships of Hon'ble Supreme Court at para-4 held as thus:
"4. In our opinion, the learned Magistrate and the High Court have adopted a very strict and unjust attitude resulting in failure of justice. In our opinion, the learned Magistrate committed an error in acquitting the accused only for absence of the complainant on one day and refusing to restore the complaint when sufficient cause for the absence was shown by the complainant."
14. In the instant case, as per the contention of the petitioner, his complaint was dismissed for his singular default in appearance.
15. For the above reasons and in the light of the observations of the Hon'ble Supreme Court in the decision referred to supra, this Court is inclined to allow this Criminal Revision Case.
16. Accordingly, the Criminal Revision Case is allowed. The impugned order dated 04.02.2008 passed in Crl.M.P.No.1224 of 2007 in Crime No.142 of 2006 of Eluru I Town L&O P.S. in C.C.(S.R.) No.454 of 2006 on the file of the Court of the learned II Additional Judicial First Class Magistrate, Eluru, West Godavari District is set aside. Consequently, 1 . (2002) 7 SCC 726 6 Crl.M.P.No.1224 of 2007 is restored to file. The learned II Additional Judicial First Class Magistrate, Eluru, West Godavari District shall dispose of the said petition in accordance with law, by giving notice to the parties.
Consequently, miscellaneous applications pending, if any, shall stand closed.
___________________________ JUSTICE RAVI CHEEMALAPATI Date : 02.08.2022 RR 7 THE HON'BLE SRI JUSTICE RAVI CHEEMALAPATI ALLOWED CRIMINAL REVISION CASE No.494 of 2009 Date : 02.08.2022 U RR