ANAR BIBI v. HABIBUR RAHAMAN — 1983 DIGILAW 83 (CAL)

JUDGEMENT 1. This is an appeal by the complainant against an order dated April 15, 1976 passed by the learned Judicial Magistrate, 7th Court, Alipore acquitting the accused persons under Section 256 of Criminal P.C. (herein-after referred to as the Code) of the of-fence under Section 427 of the Penal Code. 2. The complainant appellant filed a petition of complaint against the respon-dents on Nov. 7, 1974 in the Court of the Sub-Divisional Judicial Magistrate, Alipore. After examination of the com-plainant the learned Magistrate took cognisance and issued summons against the accused persons under Section 427 of the Penal Code. Three of the accused persons namely, respondents Nos.1, 2 and 4 appeared on July 8, 1975 and thereafter on Sept. 13, 1975 accused Ibrahim (respondent No.3) also appear-ed. The accused persons were released on bail. The case was fixed on April 15, 1976 for examination of the accused per-sons under Section 251 of the Code. On that date the complainant was found absent on repeated calls and no petition was filed on her behalf. The learned Magistrate accordingly acquitted the accused persons under Section 256 of the Code holding that the complainant appeared not to be interested. 3. Being aggrieved by the said order the appellant has preferred the present appeal. Mr. Dhar learned Advocate for the appellant has contended that the re-cord would show that the appellant was attending the Court regularly. Her ab-sence on the relevant date, namely on April 35, 1976, was due to circumstances mentioned in the petition of Appeal. Mr. Dhar submits further that on April 15, 1976 the appellant duly attended Court but she was told by her lawyer and his clerk not to enter the Court room but remain outside and as such she was sitting in a tea shop. Subsequently she was told by her lawyer to go home and she went home. She came to learn on or about April 20, 1976 that the case had been dismissed by the learned Judicial Magistrate. Appellant thereupon applied for certified copy of the order and has preferred, this appeal. Mr. Dhar argues that mere absence of the appellant on April 15, 1976 does not justify the ac-quittal of the accused persons under Sec-tion 256 of the Code when it is seen that she was attending the court regu-larly. Next contention of Mr. Appellant thereupon applied for certified copy of the order and has preferred, this appeal. Mr. Dhar argues that mere absence of the appellant on April 15, 1976 does not justify the ac-quittal of the accused persons under Sec-tion 256 of the Code when it is seen that she was attending the court regu-larly. Next contention of Mr. Dhar is that on April 15, 1976 the accused per-sons were to be examined under S.251 of the Code and as such the appellant had nothing to do on that day. The learned Magistrate, according to Mr. Dhar, was not justified, in the circumstances of the present case, in acquitting the accused persons under Section 256 of the Code. 4. The complainant filed the petition of complaint on Nov. 7, 1974. After examination of the complainant the learned Magistrate took cognisance and issued summons upon the accused per-sons under Section 427 of the Penal Code. The complainant appeared on the dates namely, Jan. 17, 1975, April 7, 1975, June 28, 1975. Three of the accus-ed persons appeared on July 8, 1976 and they were granted bail. Thereafter on the next date namely on Sept 13, 1975 another accused appeared and he was also granted bail and the case was trans-ferred to the Court of Shri H.K. Chakraborty, Judicial Magistrate, First Class. On Oct. 3, 1975 the complainant was absent by petition and the case was adjourned to Dec. 22, 1975 for appear-ance as one of the accused was absent by petition. On Dec. 22, 1975 the complain-ant was present and three of the accused persons were also present but one accus-ed was absent by petition, and the case was adjourned to Jan. 16, 1976 for ap-pearance. On Jan. 16, 1976 the com-plainant and the accused persons were present but the learned Magistrate was busy and he fixed Feb. 2, 1976 for examination of the accused persons under Section 251 of the Code. On Feb, 2, 1976 the complainant was absent. The accused persons were present. The learned Magistrate directed the complainant to appear on Mar. 9, 1976. Record shows that on the said date the complainant subsequently appeared. On March 9, 1976 the parties were present but the learned Magistrate was on leave. The case was adjourned to April 15, 1976 for exami-nation of the accused persons under Sec-tion 251 of the Code. The learned Magistrate directed the complainant to appear on Mar. 9, 1976. Record shows that on the said date the complainant subsequently appeared. On March 9, 1976 the parties were present but the learned Magistrate was on leave. The case was adjourned to April 15, 1976 for exami-nation of the accused persons under Sec-tion 251 of the Code. On April, 15, 1976 the learned Magistrate recorded the following order: "Complainant is found absent on re-peated call. No petition. All the accused persons on C.B. are present. Complain-ant appears not to be interested. The accused persons are acquitted under Sec-tion 256 Cr.P.C." 5. This is a summons case instituted on complaint. According to Section 256(1) of the Code "If the summons has been issued on complaint, and on the day ap-pointed 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 any-thing 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 per-sonal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case". The provisions of Sec-tion 256(1) of the Code correspond to Section 247 of Criminal P.C., 1898 with the changes by way of addition in the proviso underlined hereinbefore. 6. Learned Advocate for the appellant has referred to the case of Bhageerathi Ramamani v. Radhamma, 1971 Cri LJ 115 (Ker). This decision dealt with Section 247 of the Code of 1898. It has been held in this decision that the ob-ject of the provision under Section 247 was to prevent dilatory tactics of the Complainant and there was no warrant for the view that in all cases where the complainant was found to be absent on the date of hearing, the case had to be dismissed. In the instant case, on April 15, 1976 the accused persons were to be examined under Section 251 of the Code. In the instant case, on April 15, 1976 the accused persons were to be examined under Section 251 of the Code. In view of Section 256 of the Code, if the complainant in such a case does not appear, the Court may acquit the accus-ed or may adjourn the case recording reasons or proceed under the proviso to sub-section (1). The record shows that the complainant was attending the Court diligently. She was absent by petition on Oct. 3, 1975. On 2nd Feb., 1976 the complainant also appeared though she was a bit late in attending. The complainant did not appear on April 15, 1976. In the instant case the learned Magistrate should have considered whether he was unable to proceed with the case without the presence of the complainant and if he was of the opinion that he could not, then whether in view of the fact that the complainant was attending regularly he could not have adjourned the case. Section 256(1) of the Code gives discretion to the Magistrate to adjourn the hearing of the case to some other date or to proceed with the case even it the complainant is not present. In the case of State v. Gurdial Singh Gill, AIR 1961 Pun 77 : (1961 (1) Cri LJ 305) it has been held that the dismissal of the complainant on account of the complainant's absence is not to follow as a matter of course but before passing such an order the Magistrate is to apply his mind to the facts of the case before him and to consider whether it would not be proper to adjourn the hearing instead of dis-missing the complaint. 7. It appears that the learned Magistrate did not dispose of the case in the proper manner. "On the date fixed" the learned Magistrate was to proceed under Section 251 of the Code and there is nothing to show how the presence of the complainant on the said date was neces-sary. Having regard to the materials on records and the circumstance of the case the observation of the learned Magistrate that the complainant appears not to he interested cannot be upheld. The order of acquittal should thus be set aside as the learned Magistrate did not apply his mind properly to the provisions of law. Having regard to the materials on records and the circumstance of the case the observation of the learned Magistrate that the complainant appears not to he interested cannot be upheld. The order of acquittal should thus be set aside as the learned Magistrate did not apply his mind properly to the provisions of law. It cannot he said that according to Section 256(1) of the Code the learned Magistrate, without taking into considera-tion the relevant materials, shall acquit the accused as a matter of course. Be-fore the accused is acquitted under Section 256(1) of the Code all the relevant factors mentioned hereinbefore should be taken into account. 8. The order of acquittal thus can-not be sustained. The appeal is allowed and the impugned order of the learned Magistrate acquitting the accused persons under Section 256 of the Code is set aside. The learned Magistrate is directed to proceed in accordance with law. 9. Let the records be sent down forthwith. Appeal allowed.