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2007 DIGILAW 3517 (MAD)

D. S. Bedi v. P. Jayavelu

2007-11-06

K.MOHAN RAM

body2007
Judgment : Per K. MOHAN RAM, J. 1. The appeal is filed against the order of the IX Metropolitan Magistrate, Saidapet, Chennai dismissing the complaint filed by the complainant and acquitting the accused for non-appearance of the complainant on 24.1.2007. 2. It is contended that the trial Court has not followed the principles laid down by the Apex Court in the decision reported in Associated Cement Company Limited v. Keshvanand AIR 1998 SC 596 : (1998) 1 SCC 687 and has failed to see that the complainant and has counsel were appearing promptly on several hearing dates, whereas the accused was not present, which necessitated the adjourning of the case. The appellant has produced the docket entries in C.C.No. 5780 of 2003. By referring to the same, learned counsel for the appellant submitted that except on 27.10.2006, 29.11.2006 and 4.1.2007, the complainant had been attending the Court without fail. He further submits that form 14.6.2005, the case was being adjourned repeatedly for the cross examination of P.W.1 the complainant but the accused was going on taking time on one pretext or the other. When that being so, when the complainant was absent as stated above on three occasion, the Court below ought to have given notice to him before passing the order dismissing the complaint and acquitting the accused. 3. In support of his contention, learned counsel relied upon the judgment dated 10.10.2007 rendered in Criminal Appeal Nos. 909 and 910 of 2007. In the said order, the learned Judge of this court has observed as follows in Paragraph 14, 15 and 16. “14. In identical circumstances, this Court in Judgment dated 20.9.2007 sub Crl. A. Nos. 858 to 864 of 2007 has held that the proper course to be adopted by the learned Judicial Magistrate is that when the complainant were not present before the Court, it is incumbent upon the Presiding Officer to issue notice to the complainant and without issuance of such notice, adopting the procedure of dismissing the complainant under section 256 (1) Cr.P.C. is not at all appreciable. 15. Even though the power is conferred upon the Judicial Magistrate under Section 255 (1) Cr.P.C. to acquit the accused, in the absence of the complainant, the said power could not be stated to be absolute but subject to certain limitation. 15. Even though the power is conferred upon the Judicial Magistrate under Section 255 (1) Cr.P.C. to acquit the accused, in the absence of the complainant, the said power could not be stated to be absolute but subject to certain limitation. Even though the section does not specifically mention about the issuance of notice to the complainant before acquitting the accused, in order to afford opportunity to the complainant for his appearance, the court shall issue notice to him. 16. The above said decision would throw much light on the subject. The observations, findings and principles formulated in the above said decisions should be scrupulously followed by the judicial officers who are dealing with the complaint, particularly, while the matter is coming up before them, whether the complainant is present or not. The legal duty is cast upon them to record the reasons in the order manifestly as to the appearance of complainant on the previous hearings. The order should also contain the reason for the presence of the complainant for a particular hearing and whether it is a necessary one. If the presence of the complainant is not necessary in a particular hearing, they have to follow the procedure laid down as per the legal principles set out in the above said decisions. The Presiding Officer shall apply reins to his mental attitude in acting in a hurried manner, in disposing the case, while the complainant was not present before him when the matter was taken up. By his experience and by the conduct of the complainant during the previous hearing, he can very well as certain the intention of the complainant whether he wanted to ignore the proceedings. What ever maybe, in once the complainant was absent before him, he has to issue notice to him for his appearance. There should be every attempt on the part of the Presiding Officer to render real justice. No doubt the litigants expect the early disposal of the matter and it may not be fair on the part of the Courts to show the disposal in violation of the settled legal propositions and procedure. The administration of criminal justice system will suffer if sufficient opportunities were not afforded to the parties.” 4. No doubt the litigants expect the early disposal of the matter and it may not be fair on the part of the Courts to show the disposal in violation of the settled legal propositions and procedure. The administration of criminal justice system will suffer if sufficient opportunities were not afforded to the parties.” 4. If the facts of the case on hand are considered in the light of the above said observations of the learned Judge, the failure on the part of the Court below in issuing notice to the complainant before dismissing the complainant has resulted in miscarriage of justice. As pointed out by the learned Judge, at this stage, the accused in C.C.No. 5780 of 2003 need not be heard and hence the above appeal is allowed for the above said reasons. 5. The learned Judicial Magistrate is directed to follow the guidelines formulated in the judgment rendered in Crl. A. Nos. 909 and 910 of 2007 dated 10.10.2007. The Court below is further directed to restore the complaint in its file and proceed with it in accordance with law.