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2001 DIGILAW 1490 (MAD)

Pogaduru Thimmappa v. Pogadurn Chinna Thimmappa

2001-11-30

MOHAMED MIRZA, VENKATESWARA RAO

body2001
Venkateswara Rao, J.-This Criminal Appeal, which is preferred by the complainant in C.C. No. 375 of 1965 on the file of the Judicial Second Class Magistrae, Urava- konda, against the acquittal of the respondents (accused) under section 247, Criminal Procedure Code, has been referred to the bench for decision by our learned brother Venkatesam, J., having regard to the "importance." of the questions involved viz., whether the word ‘day’ in section 247, Criminal Procedure Code, means the whole working day of the Court or only the time when the case is called for hearing and whether even if the Magistrate has jurisdiction to set aside the acquittal made by him under section 247, Criminal Procedure Code, the High Court is not entitled to go into the sufficiency of the cause of the absence of the complainant and set aside the acquittal if satisfied about it. The appellant filed C.C. No. 375 of 1965 against the respondents under sections 323 and 352 Indian Penal Code. After the examination of the complainant and his witnesses was concluded, the case was adjourned to 25th September, 1965 to enable the respondents to examine the Town Inspector as a defence witness on their behalf. When the case was called on for hearing that day, neither the complainant nor his Pleader was present with the result that the learned Magistrate passed an order acquitting the respondents under section 247, Criminal Procedure Code, in the following terms: " The case was called on for hearing today to which it had been posted adjourned The complainant not being present either in person or by Pleader, accused is acquitted under section 247, Criminal Procedure Code." Aggrieved by this order, the complainant preferred this appeal which, as already stated, has been referred to the Bench having regard to the contentions raised before our learned brother. Section 247, Criminal Procedure Code, reads thus: "If the summons has been issued on complaint, and upon 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 proper to adjourn the hearing of the case to some other day." The section is thus mandatory in its terms and makes it obligatory on the Magistrate in all summons cases in which the complainant fails to make his appearance on the appointed day, to acquit the accused unless for some reason he thinks proper to adjourn the hearing of the case to some other day. This is precisely what the learned Magistrate did in the instant case. The complainant swore to an affidavit in this case stating that he did attend the Court on 25th September, 1965 but could reach it only at 11-45 a.m., on account of late running of the bus that day and that he was informed by his advocate, who too happened to attend the Court late that day, that his case was called and the accused were acquitted at 11-40 a.m. The learned Counsel for the appellant argued that the word ‘ day’ occurring in section 247, Criminal Procedure Code, means the whole working day of the Court and not merely the point of time when the case is called on for hearing and that the Court below should therefore have waited till 5-00 p.m., when alone the working hours of the Court came to a close, before exercising its jurisdiction to acquit the accused under section 247, Criminal Procedure Code. In support of this contention, he relied upon a decision of this Court in Public Prosecutor v. T.S. Prasad1, wherein Sanjeevarow Naidu, J., as he then was observed as follows: "In all cases, where the complainant appears in the Court on the day of the hearing, this section does not apply at all. It is only when the complainant does not appear at all during the Court hours, on the day of hearing, that the Magistrate could take upon himself the responsibility of throwing out a case and acquitting the accused. The section does not justify the acquittal of an accused merely because the complainant happens to be absent when the case is called. The section does not justify the acquittal of an accused merely because the complainant happens to be absent when the case is called. Such temporary absence from Court after the complainant had appeared gives no jurisdiction for the Magistrate to take action under section 247, Criminal Procedure Code." This decision cannot however be interpreted to lay down a general principle that no order under section 247, Criminal Procedure Code, can be passed in any case of absence of complainant till the end of the working hours of the Court or that such an order could be passed if only the complainant does not appear at all during the Court hours on the day of hearing. The learned Judge was dealing in that case with only a case of temporary absence of the complainant who happened to be present in the Court except for a short space of time when he went out to have his lunch If, on the other hand, the contention urged for the appellant were to be accepted it would lead in many cases to the unenviable consequence of avoidable waste of public time and unnecessary accumulation of work in criminal Courts. The working hours of the Court as prescribed by the Rules of Practice in this State are 11-00 a.m. to 5-00 p.m. with a short recess. If the word ‘day’ occurring in section 247, Criminal Procedure Code, is to be understood as meaning the whole day and not merely the point of time when the particular case is called on for hearing the Magistrate will be helpless and will have no jurisdiction to deal with any summons case under section 247, Criminal Procedure Code, even if the complainant should deliberately refrain from making his appearance till the last moment. Instances of unscrupulous persons resorting to criminal Courts with private complaints against innocent persons with the avowed object of harassing them and managing to keep those cases pending for a long time by adopting dilatory tactics are not uncommon. Instances of unscrupulous persons resorting to criminal Courts with private complaints against innocent persons with the avowed object of harassing them and managing to keep those cases pending for a long time by adopting dilatory tactics are not uncommon. There can therefore be no greater encouragement than to interpret the word ‘day ‘ in section 247, Criminal Procedure Code, in the manner suggested by the learned Counsel for the appellant There may undoubtedly be many genuine cases in which the complainants find themselves unable to reach the Court in time for reasons beyond their control but the section itself gives discretion to the Magistrate to adjourn the hearing of such cases to some other day if he has reason to think it proper to do so. It cannot therefore be contended that acting under section 247, Criminal Procedure Code, without waiting till the Courts hours come to a close will cause hardship to complainants. In fact a Division Bench of the composite Madras High Court consisting of Devadoss and Waller, JJ., held in Nagarambilli Tomkya v. Matta Jaggannatha and others1, that "there is nothing in the section which would justify the construction that the words "upon any day appointed for the appearance of the accused," etc., mean any time before the close of the working day and that the absence of the complainant at the time when the case is taken up for hearing is sufficient to iustify the Magistrate in dealing with the case under section 247, Criminal Procedure Code, and acquit the accused, and the Court is not bound to wait till the close of the day to see, before proceeding under section 247, Criminal Procedure Code, whether the complainant appears." It was also observed that "the object of section 247, Criminal Procedure Code, is to prevent the complainant from being dilatory in the prosecution of the case and if he does not care to be present when the case is called on, the accused, is entitled to an acquittal unless the Magistrate chooses for reasons he thinks proper to adjourn the case." We do not see any reason to take a view different from the one expressed in the aforesaid Division Bench decision of the Madras High Court which is binding on us This decision was evidently not brought to the notice of the learned Judge who decided Public Prosecutor v. T.S.Prasad2. The principle enunciated in i>Tonkya v. Jagannatha1 has been followed in the recent decision of our High Court in Punnaiah v. Subbaiah and another3. We must therefore find that the word “day” in section 247, Criminal Procedure Code, means only the time when the case is called on for hearing. It then follows that the Magistrate was justified in acquitting the respondents under section 247, Criminal Procedure Code, as the complainant was admittedly not present in his Court when the case was called for hearing. Our attention has not been invited to any provision in the Code which empowers the Magistrate to set aside the acquittal made by him under section 247, Criminal Procedure Code. To the other question raised by the learned Single Judge who referred the matter to Bench viz., as to whether the High Court is not entitled to go into the sufficiency of the cause for the absence of the complainant and set aside the acquittal of the respondent, our answer is in the affirmative as the High Court can exercise this power while dealing with an appeal preferred under section 417 (3), Criminal Procedure Code, by the aggrieved complainant against the order of acquittal. Section 417 (3), Criminal Procedure Code, provides for an appeal by Special Leave from an order of acquittal passed in any case instituted upon a complaint. G. Lakshmamma v. M. Venkataswami Reddi and others1, is an authority for the proposition that the High Court is entitled to go into the sufficiency of the cause for the absence of the complainant and set aside the acquittal if satisfied about it in an appeal under section 417 (3), Criminal Procedure Code. The only other question that remains to be considered in this appeal is as to whether the appellant was prevented by sufficient cause from attending the Court of the Magistrate on the appointed day. The appellant belongs to Amidala Village lying at a distance of about ten miles from Uravakonda where the Court of the Magistrate is situate. The only other question that remains to be considered in this appeal is as to whether the appellant was prevented by sufficient cause from attending the Court of the Magistrate on the appointed day. The appellant belongs to Amidala Village lying at a distance of about ten miles from Uravakonda where the Court of the Magistrate is situate. As already stated, he swore to an affidavit explaining that he could not reach the Court before n-45 a.m. on 25th September, 1965, the day fixed for examination of D.W. 1 in the case, on account of late running of the bus by which he travelled from his village to Uravakonda that day and that by the time he reached the Court, he was told by his Advocate that the case was called at 11-40 a.m. and an order acquitting the accused was also passed then. The appellant was represented by an Advocate in that case but unfortunately, he too could not be present in the Court when the matter was called due to personal inconvenience as can be gathered from his affidavit. We are convinced that the late attendance of the appellant in the Court on the appointed day and the failure of his Advocate to make any representation on his behalf when the matter was called oh that day were due to reasons beyond their control and not on account of any laches on their part. In this view the appeal deserves to be allowed. In the result, we set aside the acquittal of the respondents and direct the Court below to restore the case to its file in its original number and dispose it of according to law. The appeal is accordingly allowed. A.B.K. ------- Acquittal set aside. Case remanded.