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2005 DIGILAW 199 (RAJ)

Vidhya Devi v. Narayan Singh

2005-01-24

H.R.PANWAR

body2005
Judgment H.R. Panwar, J.-Heard learned Counsel for the parties. Perused the order impugned. 2. The complainant-petitioner has assailed the order dated 24.02.2003 passed by Judicial Magistrate, Bar, Distt. Pali (for Short the trial Court) whereby the trial Court discharged respondent No. 1 from the offence under Section 494 IPC. 3. It appears from various order-sheets placed on record that the petitioner filed complaint was filed way back in the year 2000. The matter was posted to 30.11.2000, 212.2000, 23.01.2001, 22.02.2001, 21.03.2001, 07.05.2001, 06.06.2001, 22.08.2001, 22.09.2001, 112.2001, 05.04.2002, 07.05.2002, 22.06.2002, 02.08.2002 and 010.2002. On all the dates noticed above, the complainant failed to appear before the trial Court. The matter was posted for recording of pre-charge evidence but neither the petitioner herself appeared nor she produced her witnesses. 4. I have gone through the order-sheets of the dates noticed above. The trial Court afforded last opportunity on as many as 5-7 occasions to the petitioner to produce her witnesses but neither the petitioner nor her witnesses appeared and examined and ultimately, on the last date i.e. 24.02.2003, an application was filed seeking exemption from personal appearance of the complainant but on that day also, neither the complainant nor her witnesses were present before the trial Court. The trial Court granted as many as five last opportunities to the complainant-petitioner to produce her evidence. The trial Court refused any further adjournment and discharged accused-respondent No. 1 from the offence under Section 494, IPC. 5. It appears that after filing the complaint, the complainant showed inaction and apathy in pursuing the matter despite several opportunities afforded to her, though on almost all days of hearing, the accused remained present before the trial Court, which shows the intention of the complainant to harass the accused by a dilatory tactics of lingering on the matter. 6. In Bindeshari Prasad vs. Kail Singh, AIR 1977 SC 2432 , the Honble Supreme Court observed that in view of the absence of the complainant the Magistrate when does not adjourn, nor dispenses with the attendance of the complainant, this means the acquittal of the accused and such a complaint cannot be revived. 7. In Associated Cement Co. Ltd. vs. Keshvanand, AIR 1998 SC 596 , a complaint for dishonour of cheque was filed by attorney-holder of the company. The complainant could not appear before the Court and the trial Court acquitted the accused-respondent. 7. In Associated Cement Co. Ltd. vs. Keshvanand, AIR 1998 SC 596 , a complaint for dishonour of cheque was filed by attorney-holder of the company. The complainant could not appear before the Court and the trial Court acquitted the accused-respondent. The Apex Court observed that the provisions of Section 256, CrPC are applicable even where complainant is company or any other juristic person and further observed that the discretion as to whether personal attendance of complainant should be dispensed with or not, has to be exercised judicially. The Apex Court further held as under:- "A reading of Section 256, CrPC 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 apersonal attendance of the complainant is not necessary on that day, the Magistrate has the power to dispense with his attendance 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." 8. The purpose of introducing Section 256, CrPC is to protect an accused against delaying tactics of the complainant. The Honble Supreme Court, in Associated Cement Co. Ltd.s case (Supra), while dealing with the purpose behind Section 256, CrPC, further held as under:- "It affords some deterrence against dilatory tactics on the part of a complainant who set the law in motion through his complaint. The Honble Supreme Court, in Associated Cement Co. Ltd.s case (Supra), while dealing with the purpose behind Section 256, CrPC, further held as under:- "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 if the complainant is absent, Court has a duty to acquit the accused in invitum." 9. In the instant case, the trial Court granted various opportunities, even terming some as last opportunities, but the complainant petitioner did not avail the same. Her unexplained absence shows her tacit intention to linger on the trial, leading accused respondent to suffer the agony of protracted trial. In such fact-situation, the trial Court was justified in rejecting the application for exemption from personal attendance and acquitting the accused-respondent. No case for interference is made out. 10. In view of the above discussion, I do not find any error, illegality or perversity in the order impugned. The revision petition fails and is hereby dismissed accordingly.