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2006 DIGILAW 538 (KER)

Joy Abraham v. Jiju Thomas

2006-08-17

K.HEMA

body2006
JUDGMENT : K. Hema, J. Can a Magistrate acquit an accused against whom warrant is issued, under Section 256(1) of the Code of Criminal Procedure ('the Code' for short)? Which are the days referred to as, "the day appointed for the appearance of accused" and "any day subsequent thereto to which the hearing may be adjourned" in Section 256(1) of the Code? 2. The respondent-accused was summoned by the Magistrate, on a complaint filed by appellant before him. The accused failed to appear in Court in obedience of summons and hence, non-bailable warrants were issued against him, from time to time. Warrants were returned unexecuted. The proceedings stood over to a period of two years. On one of days on which warrant was returned unexecuted, complainant was absent. There was also no representation for him. Hence, Trial Court passed the following order: "Accused absent, warrant returned unexecuted. Complainant absent. No representation. I do not find any reason to adjourn the case further. In the result, acquitted the accused under Section 256 (1) Criminal Procedure Code." 3. The complainant-appellant (hereinafter, referred to as "complainant") is aggrieved by the above order and hence, this appeal. Learned counsel for appellant submitted that complainant was prosecuting the case vigilantly, and he was also appearing in Court on all posting dates during the period of two years of pendency. Though the case was pending before Trial Court for about two years, accused failed to appear and non-bailable warrants were issued against him. Still, his presence could not be procured. On the crucial day also, warrant was returned unexecuted. 4. On the other hand, complainant was promptly taking steps for issuing process to accused and he was prosecuting the case for 2 years vigilantly. His counsel could not reach on time in Court on the crucial day. In such circumstances, Trial Court ought to have given one more opportunity to complainant and adjourned the case, instead of acquitting accused, it is submitted. The case was pending for a period of two years only since accused was evading process. Therefore, the impugned order may be set aside and an opportunity may be given to complainant for prosecuting the case, it is submitted. 5. The accused did not appear before this Court also though notice was issued to him. Service could be completed only by affixure. The order under challenge is passed under Section 256 of the Code. Therefore, the impugned order may be set aside and an opportunity may be given to complainant for prosecuting the case, it is submitted. 5. The accused did not appear before this Court also though notice was issued to him. Service could be completed only by affixure. The order under challenge is passed under Section 256 of the Code. It reads as follows: "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." 6. A reading of Section 256(1) of the Code shows that the said provision empowers a Magistrate to acquit an accused in a summons case, on the mere ground of non- appearance of complainant. But, such an order can be passed only on the two days which are specified in Section 256(1). Those days are: (i) the day appointed for appearance of the accused (if the summons has been issued on complaint) or (ii) any day subsequent thereto, to which the hearing may be adjourned. 7. Section 256(1) of the Code does not empower the Magistrate to acquit an accused on any day of his choice. An accused can be acquitted under Section 256(1), only on the two types of days which are specified in the said provision. If an accused is acquitted on any day other than the days referred to in Section 256(1) of the Code, by an order which is purported to be passed under the said Section, it will be illegal and without jurisdiction. If an accused is acquitted on any day other than the days referred to in Section 256(1) of the Code, by an order which is purported to be passed under the said Section, it will be illegal and without jurisdiction. So, before acquitting an accused under Section 256(1) of the Code, the Magistrate shall confirm that the day on which the accused is acquitted is one of such days referred to in the said section. 8. It is also clear from the decision reported in that an order of acquittal under Section 256(1) of the Code can be passed only on the date fixed for the appearance of the accused or any other date of adjourned hearing. It is held therein that the provision does not apply to a case where the complainant is absent on the date fixed for delivery of the judgment. The relevant portion of the decision is extracted hereunder: "A reading of the section would show, that it applies to a case of absence of the complainant on the date fixed for the appearance of the accused or any other date of adjourned hearing, but it does not apply to a case where the complainant is absent on the date fixed for delivery of the judgment. If on such date the complainant is absent and the attendance of the complainant on the date was not specifically directed by the Magistrate an order of acquittal of the accused on the ground of the absence of the complainant is clearly erroneous. In support of this position reference may be made to the decisions in Girish Chandra Das v. Bhusan Das (ILR (46) Cal. 867); Emperor v. Jangusingh, (AIR 1923 Nagpur 158); Mohideen Batcha v. Mahoomia Sahib, (1933 M. W. N. 1271) and Muhammad Hay at Muhammad Yar v. Daulat Khan Saleh, (AIR 1938 Lahore 121)". (emphasis supplied) 9. Now, I shall proceed to consider which is the first category of day referred to in Section 256(1) of the Code. As per Section 256(1) of the Code, it is, "the day appointed for the appearance of the accused". The expression, "appearance" in Section 256(1) of the Code is relevant. The first type of day in Section 256(1) is the day appointed for "appearance" of accused and it is not the day to which the case is posted for "production" of accused in Court. The expression, "appearance" in Section 256(1) of the Code is relevant. The first type of day in Section 256(1) is the day appointed for "appearance" of accused and it is not the day to which the case is posted for "production" of accused in Court. It is also relevant to note that Section 256(1) of the Code applies only to cases in which summons is issued on a complaint and, the said provision commences with the expression, "if the summons has been issued on complaint". 10. Therefore, Section 256(1) does not apply to a case in which warrant is issued. The Magistrate shall not, under Section 256(1), acquit an accused whose production in Court is sought for under an arrest warrant. In short, an accused against whom warrant is issued shall not be acquitted under Section 256(1) of the Code. The benefit of an acquittal order under Section 256(1) of the Code shall not be extended to an accused who fails to appear in Court, in obedience to the summons issued by the Court. It is not intended to be invoked in favour of such an accused. 11. I shall now proceed to examine whether the impugned order was passed on the second type of the day which is referred to in Section 256(1) of the Code and, if so, whether the impugned order can be sustained or not. The second category of day referred to in Section 256(1) of the Code is, "any day subsequent thereto, to which the hearing may be adjourned". The expression, "subsequent thereto" in Section 256(l) indicates that the second day has reference to the former day referred to in the provision. It must be a day which falls 'subsequent" to the first type of the day referred to in Section 256(1). It must also be the day to which "hearing" may be adjourned. Which is such day? 12. The first day referred to in Section 256(1) of the Code is "the day appointed for the appearance of the accused" (if the summons has been issued on complaint), and the second type of day is, "any day subsequent thereto, to which the hearing may be adjourned". Therefore, the former day referred to above is the day appointed for appearance of the accused, on issuance of summons. Therefore, the former day referred to above is the day appointed for appearance of the accused, on issuance of summons. It is the day when he makes appearance in Court, on receipt of summons, under Section 251 of the Code. 13. As per Section 251 of the Code, if the accused appears on summons, the particulars of the offence of which he is accused, shall be stated to him by the Court. He shall then, be asked whether he pleads guilty or has any defence to make. If the accused is not convicted on his plea of guilt or if he pleads not guilty, the Court shall adjourn the case for "hearing" the prosecution, under Section 254(1) of the Code. Section 254(1) lays down, "if the Magistrate does not convict the accused under Section 252 or S.253, the Magistrate shall proceed to hear the prosecution." 14. Therefore, the second category of day which is referred to in Section 256(l) of the Code as "any day subsequent thereto, to which hearing may be adjourned" falls under Section 254(1) of the Code. It is any day to which the case may be adjourned for hearing the prosecution, as stated in Section 254(1) of the Code. Thus, the first day referred to in Section 256(1) of the Code is the day of appearance of accused under Section 251, whereas, the second day is the day to which the Court adjourns the case to hear the prosecution under Section 254(1) of the Code. 15. It is submitted at the bar that the Magistrate Courts do not normally adjourn the case for "hearing", after recording the plea, but the case is straightaway posted for evidence. Section 254(1) of the Code lays down, "if the Magistrate does not convict the accused under Section 252 or S.253, the Magistrate shall proceed to hear the prosecution......". A reading of Sections 251 to 254 of the Code makes it clear that if the accused pleads not guilty, the Magistrate shall post the case for hearing prosecution. The word used in Section 254(1) is "shall" and it is the mandate of law that such procedure is followed. 16. In the light of the provision contained in Section 254(l) of the Code, it will not be legal to skip the procedure which is mandatory. The word used in Section 254(1) is "shall" and it is the mandate of law that such procedure is followed. 16. In the light of the provision contained in Section 254(l) of the Code, it will not be legal to skip the procedure which is mandatory. When Section 254(1) mandates adjournment of the case to "hear" the prosecution, it will be no excuse to say that the Courts normally do not follow such procedure. So, at least hereafter, in cases where the accused pleads not guilty or the accused is not convicted under Section 252 or 253 of the Code, the Magistrates shall post the case for hearing the prosecution. 17. From the above discussion, it emerges that under Section 256(1) of the Code, the Magistrate can acquit an accused only at the early stage of trial. That is, either at the stage of Section 251 of the Code i.e., on the date of appearance of accused or at the stage of Section 254(1) i.e., on any day subsequent thereto to which the case may be adjourned for hearing the prosecution. A question will naturally arise, why a prosecution must come to an end, for mere absence of complainant that too, at such an early stage of trial. Will not it cause miscarriage of justice, as far as the complainant is concerned? 18. To give an answer, the intention of Legislature in laying down Section 256 of the Code is to be understood first. A close look at the relevant provisions of the Code will be necessary to find out such intention. The scope of the relevant provisions can be best discussed with reference to a hypothetical case: A complaint is filed alleging a particular offence against a person. The allegation in the complaint do not, prima facie, disclose any offence at all. It appears that it is only an experimental complaint, intended to harass the accused, without there being even the necessary allegations relating to the ingredients of any offence it is a summons case. 19. The accused enters appearance in Court, on receipt of summons. On his appearance, the Court has to proceed under Section 251 of the Code. It appears that it is only an experimental complaint, intended to harass the accused, without there being even the necessary allegations relating to the ingredients of any offence it is a summons case. 19. The accused enters appearance in Court, on receipt of summons. On his appearance, the Court has to proceed under Section 251 of the Code. 5.251 lays down, "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 etc. On being convinced that the complaint does not disclose any offence, the Court asks the accused "whether he has any defence to make" or whether he pleads guilty, after stating to him the particulars of the offence of which he is accused. 20. The accused pleads not guilty and makes his defence that the allegations in the complaint do not constitute offence and that the complaint is filed to harass the accused and if he is prosecuted on such complaint, it would result in utter miscarriage of justice and that it will amount to an abuse of process of Court if proceedings are continued. The Court is satisfied of his defence. The Court finds that the complainant is absent on that day. The Court shall therefore, acquit the accused Section 256(1) of the Code, on that day itself, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day, as stated in the said provision. Such acquittal only secures ends of justice, even though the acquittal is on the first day of appearance itself. 21. But, on the other hand, if the Magistrate, instead of acquitting the accused on the first day of appearance of accused, he thinks it proper to adjourn the case in the absence of complainant, the Court may adjourn the case to "hear" the prosecution, as laid down in Section 254(1) of the Code. Since accused has pleaded not guilty and put forward a valid defence, the Court is bound to hear the prosecution. Since accused has pleaded not guilty and put forward a valid defence, the Court is bound to hear the prosecution. As per Section 254(1) of the Code, "if the Magistrate does not convict the accused under Section 252 or S.253, the Magistrate shall proceed to hear the prosecution........" So, if on any such day to which the case is adjourned for hearing, (i.e., the second day falling under Section 256(1) of the Code), the complainant does not appear and the Magistrate thinks it not proper to adjourn the case any further, he shall acquit the accused, ('shall acquit' is the expression used in S.256). Such acquittal also enhances justice and the Court need not hesitate to do justice to a person who deserves it, at the earliest. The Court need not wait until the trial is over to acquit him. 22. It is relevant to mention here that the Court need not necessarily acquit the accused on the second category of day, if he thinks, for some reason, proper to adjourn the hearing of the case again to some other day. The Court may again adjourn it for hearing. On any such subsequent day to which, the case is thus adjourned for hearing also, if the complainant is absent, the Court can acquit the accused, under Section 256(1) of the Code. Thus, the Legislature has intended that a person who has appeared in Court, in obedience to summons and who does not deserve to be prosecuted on the basis of a defective complaint or for some other strong reason, shall be acquitted at the earliest stage of the case if complainant is absent. He shall not be harassed at the instance of a complainant who fails to appear in Court, after having filed the complaint with the sole intention of harassing him or if he is not vigilant. 23. It is held in Govindan Nambiar v. Chidamberaswara Iyer ( 1961 KLT 797 ) that the intention behind Section 256(1) of the Code is to "prevent dilatory tactics on the part of complainants and consequent harassment to accused persons". Thus, there is, noble cause which is sought to be achieved by the Legislature by introducing Section 256 of the Code and the Court shall not ignore it. 24. However, Section 256(1) of the Code is most often misused, without understanding the scope of the provision or the intention of the Legislature. Thus, there is, noble cause which is sought to be achieved by the Legislature by introducing Section 256 of the Code and the Court shall not ignore it. 24. However, Section 256(1) of the Code is most often misused, without understanding the scope of the provision or the intention of the Legislature. The said provision is seen invoked by Magistrate Courts in thoughtless haste, in a routine manner. The result is that the benefit of acquittal goes to an undeserving person who tries to defeat law, by evading process issued by Court. It also ends up in gross injustice being caused to a complainant who vigilantly prosecutes a genuine complaint. The Legislature does not intend to achieve either of these results. 25. Therefore, it is desirable that at the earliest stage of the case itself, frivolous complaints (which are instituted only for harassing the accused) are weeded out. If Sections 251 and 256(1) of the Code are carefully applied, unmerited cases could be thrown out at the threshold itself and an accused may not have to approach the High Court to quash the proceedings under Section 482 of the Code. In this context, the Magistrates are also alerted on the importance of exercising their power under Section 251 of the Code, as stated in the said provision. This section enables the Magistrate to know the defence of the accused at the earliest stage of the case. 26. On appearance of the accused, S.251 of the Code enables the Magistrate is empowered to ask the accused, if he has "any defence to make". This will help the Court to do justice in deserving cases at the earliest stage, on knowing the defence of the accused, at the commencement of the trial itself. An accused need not unnecessarily be tied up to a proceedings in a Criminal Court, especially in cases where complainant remains absent. Section 256(1) comes to rescue of an accused, and a deserving person can be acquitted for mere non-appearance of complainant, at the early stage of the case itself. Even if the complainant appears in Court, the Court will be able to give preference to such cases and dispose of the same without delay. 27. But, in this case, learned Magistrate acquitted the accused not on either of the two days referred to in Section 256(1) of the Code. That itself is illegal. Even if the complainant appears in Court, the Court will be able to give preference to such cases and dispose of the same without delay. 27. But, in this case, learned Magistrate acquitted the accused not on either of the two days referred to in Section 256(1) of the Code. That itself is illegal. Further, Section 256(1) of the Code was misused to acquit an accused, whose presence could not be procured, despite repeated issuance of warrants. The Court also ignored the resultant injury which might be caused to the complainant, who was vigilant in prosecuting his complaint. The impugned order is passed in thoughtless haste and without understanding the scope of the provision or its purpose and it has resulted in total miscarriage of justice. The order under challenge is, therefore, unsustainable for more than one reason. Hence, the following order is passed: (1) The impugned order is set aside. (2) Trial Court is directed to take CC No. 437/99 on file and issue notice to appellant's counsel and dispose of the case afresh, in accordance with law. (3) The appellant-complainant shall appear before the Trial Court on receipt of summons by his counsel.