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2012 DIGILAW 410 (KER)

K. Sudhakaran, M. L. A. v. V. S. Achuthanandan

2012-04-12

V.K.MOHANAN

body2012
Judgment : 1. The complainant in a private complaint is the appellant as he is aggrieved by the order dated 3.2.2009 in C.C.No.1192 of 2004 of the Court of Additional Chief Judicial Magistrate, Ernakulam by which the learned Magistrate acquitted the accused under Section 256(1) of the Code of Criminal Procedure (for short 'the Cr.P.C.'), who faced prosecution for the offence punishable under Section 500 of the Indian Penal Code (for short 'the I.P.C.') 2. The case of the appellant is that at the time of filing the complaint which is dated 17.1.2004, he was the Minister for Forest and Sports, Government of Kerala and the President of Kannur District Congress Committee and the accused was the then Leader of Opposition. According to the appellant/complainant, the accused solely with the object of tarnishing the image of the complainant and for selfish political purposes, convened a press conference on 7th July, 2003 at Thiruvananthapuram and according to the complainant, in the presence of press reporters, the accused made an allegation that the complainant, by accepting Rs.5 crores, caused a loss of an amount of Rs.18 crores which is due to the State Exchequer and such allegation was baseless and without support of any relevant records and without understanding the real facts and the allegation was reckless. It is the further case of the complainant that by such statement, the accused caused immense damage to the reputation of the complainant, who being a Minister. Thus, according to the complainant, the accused has committed the offence punishable under Section 500 of I.P.C., for which he preferred the above complaint. 3. It is the further case of the appellant that the court has taken cognizance for the said offence against the accused and the appellant had appeared before the court on three to four occasions, and it is the claim of the appellant that in spite of the hectic public activities of the complainant far away at Kannur, he had appeared before the court and tendered evidence and after partial examination of the complainant on 15.12.2008, it was noticed that complete records of the proceedings, which were in this Court and are very relevant, were not available, though the same were essential for adjudication of the matter. According to the appellant, his application for adjournment of the case on 17.1.2009 was allowed and when the case was posted to 24.1.2009, he had moved an application to condone his absence and prayed for a posting of the case after two weeks, but according to the appellant, the learned Magistrate allowed the prayer only in part and posted the case on 3.2.2009 knowing fully well that the petitioner was finding it difficult to appear before the trial court because of the proceedings pending in the court in Andhra Pradesh at the instance of the rival political party of which the accused is a leader. Thus, according to the appellant, when the case was posted in the trial court on 3.2.2009, an application was moved on behalf of the complainant seeking adjournment. It is also the case of the appellant that another petition was also moved by the junior counsel attached to the office of counsel for the complainant as the grandmother of the junior counsel had passed away, and as such, he was unable to appear in the court below, who was in charge of the case and prepared to instruct the senior counsel. It is the further case of the appellant that the senior counsel could not reach the trial court as he was busy with the cases posted in the High Court on that day. Another counsel Sri.P. Rajkumar, who filed vakalath along with the senior counsel, had suspended his practice years back. But, according to the appellant, ignoring all these facts and after dismissing those petitions, the learned Magistrate issued the impugned order in total disregard of the procedural and legal aspects involved in the case. 4. I have heard Sri.K.Ramakumar, learned senior counsel for the appellant and Sri.Vakkom.N.Vijayan, learned counsel appearing for the first respondent. 5. Sri.K.Ramakumar, learned senior counsel for the appellant invited my attention to the subject matter of the complaint and submitted about the seriousness of the allegations raised by the appellant in the complaint against the first respondent/accused. Learned senior counsel strenuously submitted that the learned Magistrate issued the order without application of mind and on wrong understanding of the various provisions of the substantial and procedural law and the provisions of the Evidence Act. Learned senior counsel strenuously submitted that the learned Magistrate issued the order without application of mind and on wrong understanding of the various provisions of the substantial and procedural law and the provisions of the Evidence Act. The learned counsel vehemently submitted that two applications were filed before the court below on the date of the impugned order, one with a prayer for exempting the complainant from his personal appearance for the day and another petition for adjournment of the case and those petitions were dismissed on flimsy grounds. According to the learned counsel, even in the absence of any petition for adjournment, the court is bound to consider such request even if such prayer is made by the counsel, who has no vakalath, since that is the practice adopted generally, otherwise it will affect the junior advocates and functions of the court. But, the learned Magistrate, according to the counsel, ignoring the above recognized and procedural aspects, on flimsy grounds that the counsel, who signed the petition for adjournment, has no lawful authorization, either by way of vakalath or by way of memo of appearance, dismissed that petition as well. It is also the contention of the learned counsel that part of the chief examination of the complainant was over on 15.12.2008 and the case was adjourned and posted for continuing and completing the chief examination of the complainant. According to the learned counsel, the learned Magistrate has observed that the statement in partly recorded chief examination of the case cannot be termed as evidence and the above approach and findings of the court below are absolutely incorrect and illegal especially in the light of Section 137 of the Indian Evidence Act. Another point raised by the learned counsel is that the finding of the court below contained in paragraph 7 of the impugned order that the continuance of the proceedings seems to be not seriously intended by the complainant, is perverse and incorrect. Since, according to the learned counsel, the complainant has already been mounted to the box and got examined as PW1, though his chief examination is not complete, and he had deposed before the court below in support of his allegation in the complaint through which he had stated several facts which are sufficient to constitute the offence alleged against the accused and such deposition runs about 11 pages. Hence, according to the learned counsel, the above findings of the learned Magistrate are incorrect. Thus, according to the learned counsel for the appellant, in the light of the above facts and circumstances, the learned Magistrate ought to have granted an adjournment in favour of the appellant/complainant in terms of the proviso to Section 256(1) of the Cr.P.C. instead of acquitting the accused under Section 256(1) of the Cr.P.C. Thus, the learned counsel submitted that considering the stage at which the impugned order was passed, after setting aside the impugned order, an opportunity may be given to the complainant to prosecute the matter on merit and to have a decision thereon. 6. On the other hand, Sri.Vakkom.N.Vijayan, learned counsel appearing for the first respondent, fully supporting the impugned order and the reasons assigned therein, vehemently submitted that the trial court has given maximum accommodation for the appellant/complainant and the court was not at all hasty as alleged by the appellant in issuing the impugned order. It is also the submission of the learned counsel that going by the procedure adopted by the court below during the trial of the case as evident from the 'B' diary proceedings, it is crystal clear that the learned Magistrate has issued the order in exercise of his discretionary jurisdiction in accordance with the well settled principle of law and the learned Magistrate has no option other than to issue an order acquitting the accused under Section 256(1) of the Cr.P.C. because of the culpable negligence and lapse on the part of the appellant/complainant. On the strength of the decision of the Honourable Apex Court reported in Associated Cement Co.Ltd v. Keshvanand [1998 Crl.L.J.856], learned counsel for the respondent submitted that the presence of the appellant/complainant on the date of the impugned order was absolutely necessary and inevitable for the progress of the trial and there is no reason for adjourning the case to another date and therefore, the learned Magistrate is fully justified in issuing the impugned order acquitting the accused. Thus, according to the learned counsel, the appellant has miserably failed to make out any ground to interfere with the order issued by the learned Magistrate acquitting the accused and hence, the above appeal deserves no consideration and the same is only to be dismissed. 7. Thus, according to the learned counsel, the appellant has miserably failed to make out any ground to interfere with the order issued by the learned Magistrate acquitting the accused and hence, the above appeal deserves no consideration and the same is only to be dismissed. 7. I have carefully considered the argument advanced by the learned Senior Counsel Mr.K.Ramakumar, who is appearing for the appellant and Advocate Sri.Vakkom.N.Vijayan, learned counsel for the first respondent. 8. Considering the seriousness of the issue involved in the case and as the propriety demands, I have directed the Registry to make available the back records of the case and thus, I have examined the back records involved in the case including the 'B' diary proceedings of the court below. 9. In the light of the contentions advanced by the learned Senior counsel for the appellant and the respondents and in the light of the facts and circumstances involved in the case, especially in the light of the reasons assigned by the learned Magistrate in support of his order, the question that emerges for consideration is whether the learned Additional Chief Judicial Magistrate is justified and correct in exercising the discretionary jurisdiction vested with him under Section 256(1) of the Cr.P.C. in acquitting the accused and whether the order impugned is liable to be interfered in exercise of the appellate jurisdiction of this Court. To answer the above question, the short facts which led to the filing of the complaint and the procedure adopted by the court below are absolutely necessary, which I shall refer now. Hereinafter for convenience, the parties shall be referred to as 'complainant' and 'accused' respectively, who are the appellant and the first respondent in the above appeal. 10. When the complainant filed the complaint dated 17.1.2004, he was the Minister for Forest and Sports, Government of Kerala whereas the accused was the then leader of opposition. It is beyond dispute that during the eight years after the complaint, there was drastic change in the political and official status of the parties. It is also beyond dispute that the complainant as well as the accused are holding the official posts in their respective political party and also holding various posts in various organisations and they are politically in opposite camps. It is also beyond dispute that the complainant as well as the accused are holding the official posts in their respective political party and also holding various posts in various organisations and they are politically in opposite camps. The very allegation in the complaint is that the Press Conference held on 7.7.2003 at Thiruvananthapuram by the accused was politically motivated and due to the allegation made in such press conference, the accused caused immense damage to the reputation of the complainant, he being a Minister. The counsel for the accused submitted that the present complaint is also filed with oblique political reason because of political animosity of the complainant towards the accused. Both the above claim and contention of the parties cannot be ruled out in the absence of any convincing positive evidence or materials. In effect, the alleged political motive is a double edged weapon. 11. As I indicated earlier, the complaint is dated 17.1.2004 and the sworn statement of the complainant was recorded under Section 200 of Cr.P.C. on 17.1.2004 itself. The 'B' diary proceedings of the court below shows that thereafter, there were nine postings at the instance of the complainant except on 9.3.2004 on which date, there was no sitting and the examination of the complainant's witnesses under Section 202 of Cr.P.C completed only on 22.5.2004. Thus, the court took cognizance for the offence under Section 500 of I.P.C. against the accused on 3.6.2004 and issued summons to the accused. Thereafter, on the next posting date, the complainant was not present, but represented and there was no sitting on the next posting date i.e., on 26.8.2004. On 15.10.2004, the accused appeared and his plea was recorded and released him on bond, who was exempted from personal appearance until further orders and posted the case for evidence on 15.3.2005. Thereafter, though there were ten postings, there was no sitting on 5 posting dates, but the complainant was absent on all effective posting dates. Finally, the complainant was present on 15.12.2008, on which date he was examined as PW1 in part and thereafter, the further examination of PW1 adjourned and posted to suit the convenience to both the parties. Thereafter, though there were ten postings, there was no sitting on 5 posting dates, but the complainant was absent on all effective posting dates. Finally, the complainant was present on 15.12.2008, on which date he was examined as PW1 in part and thereafter, the further examination of PW1 adjourned and posted to suit the convenience to both the parties. Thus, when the case was taken on 17.1.2009 as well as on 24.1.2009 and finally, on 3.2.2009, the complainant did not appear and thus, by the impugned order, the learned Magistrate acquitted the accused under Section 256(1) of the Cr.P.C. Going through the 'B' diary proceedings of the court below, it can be seen that the learned Magistrate of the court below gave maximum accommodation for the complainant considering his official position both under administrative as well as on political side. 12. The main contention raised by the learned Senior Counsel on behalf of the appellant is with respect to the procedure and the approach of the learned Magistrate adopted on the date of the impugned order. For convenience, at this juncture, I will refer to the contentions advanced by the learned counsel for the appellant and according to him, the learned Magistrate issued the order without application of mind and on wrong understanding of the various provisions of the procedure and law. It is also the submission of the learned counsel that the two applications filed on the date of the impugned order i.e., Crl.M.P.No.418 of 2009 and Crl.M.P.No.419 of 2009 which were dismissed on flimsy and untenable grounds. Crl.M.P.No.419 of 2009 is filed on behalf of the complainant under Section 309 of Cr.P.C. for exemption. But, the prayer in that petition is to adjourn further proceedings in the above case to a convenient date at least after two weeks and the ground mentioned therein is connected with the sad demise of the grandmother of Advocate Sri.M.Manojkumar, whereas Crl.M.P.No.418 of 2009 is filed for exemption of the petitioner/complainant under Section 256(1) of Cr.P.C. The prayer therein is that the presence of the complainant on that day may be dispensed with and the absence be condoned. The ground mentioned therein is that the complainant could not unfortunately personally appear in the case as he had been held up in Kannur due to unavoidable reasons and in addition to that, it was also stated that the instructing counsel's grandmother passed away and the said fact is communicated to the complainant and hence, he is not in a position to attend the case. 13. In the light of the contention advanced by the counsel for the complainant, the question to be considered is whether there is any illegality or impropriety or arbitrariness in dismissing the above petitions rejecting the prayers therein. The learned counsel for the appellant strenuously submitted that for making a submission by an Advocate for the adjournment of a case pending before the Magistrate Court, not even a vakalath is necessary, but in the present case, the learned Magistrate adopted a highly hyper technical approach. According to the learned counsel, the said approach of the Presiding Officers of the court is likely to affect the interest of the Bar, especially the young lawyers. I have no hesitation in expressing my opinion sharing the above view of the learned senior counsel with respect to the normal adjournments of the case. Such a practice is being adopted right from the very establishment of the court of law and if such a practice is not allowed, it will adversely affect the very smooth functioning of the courts itself, especially in a situation where there is establishment of more number of courts, new entrants in the legal profession and hike in the litigation. Still then, each case has to be examined on its own facts and circumstances, particularly the stages of the proceedings. Such submissions and prayers are subjected to the satisfaction of the Presiding Officer of the court concerned, who will have his own assessment about the Advocates who are regularly appearing before him and the bonafideness and the genuineness of the submission made at the Bar. I am of the firm view that normally, no presiding officers of the trial court, especially the criminal court insists for the vakalath of the lawyer to entertain a submission for an adjournment of the case on a particular day. I am of the firm view that normally, no presiding officers of the trial court, especially the criminal court insists for the vakalath of the lawyer to entertain a submission for an adjournment of the case on a particular day. In this juncture, it is relevant to note that this Court in the decision reported in Alice George v. Deputy Superintendent of Police [2003(1) KLT 339], issued certain guidelines to be followed by the trial court during the trial of the cases pending before it. As I indicated earlier, the request for an adjournment has to be examined in the light of the particular facts and circumstances and the stages of the proceedings of the case of the accused and stages of the proceedings pending before the court. 14. On a consideration of those facts in the present case, as I indicated earlier, it can be seen that in the present case, even though there were 28 postings, on 7 posting dates, there was no sitting and out of 21 posting dates, the complainant was personally present only on three occasions i.e., on 17.1.2004 for the sworn statement, on 8.8.2008 for evidence and finally on 15.12.2008 on which date, he was examined as PW1 in part. It is relevant to note that though the complaint was filed as early as on 17.1.2004, the impugned order was passed after five years during which time the case was pending before the trial court solely for the purposes of the complainant's evidence particularly for the examination of the complainant. As I indicated earlier, the perusal of the B diary proceedings of the trial court would show that sufficient opportunities were given to the complainant to adduce his evidence and maximum accommodation was given to him probably considering his official position on various capacities. In this respect, the proceedings recorded by the court below on 20.9.2008 is relevant which I quoted herein for convenience. "20.09.08 Complainant absent. Accused exempted. Complainant applied. For evidence of complainant, he seeks time. On the pretext that "he has number of commitments to meet in the month of September and October. He has also to visit New Delhi". It seems by the tenor of the application and the vague reason, the complainant is not interested to augment the process of the trial but to keep it in freezer for some more time. On the pretext that "he has number of commitments to meet in the month of September and October. He has also to visit New Delhi". It seems by the tenor of the application and the vague reason, the complainant is not interested to augment the process of the trial but to keep it in freezer for some more time. The complainant's counsel however suggested a date for his adduction or evidence, as 22.11.2008 which is allowed. For evidence of complainant positively to 22.11.08." (underline supplied) However, the court below upon the submission made by the counsel for the complainant, adjourned the case to 22.11.2008 for the evidence of the complainant. But again, the complainant was absent on 22.11.2008. Still then, the court below adjourned the case and posted the same as last chance for evidence of the complainant on 25.11.2008. The said posting was made by an elaborate proceedings dated 22.11.2008, which is also quoted hereunder for convenience. "22.11.08 Complainant absent. Applied again on the ground that he has to inaugurate the KAPT Union District camp at Kannur today. He also has to attend a programme relating to 'Anti-terrorist March'. Both are according to the complainant official and presumably more vital and important than appearing before this court to give evidence in a case wherein fame is allegedly 'defamed' for which he himself has suggested this date particularly to his choice and was got granted. The complainant could have given preference to appear before the court to the alleged 'official commitments', which could have been postponed if he was to be an essential part of those programmes. Having not done so, and in the absence of any affidavit or materials to support the petition, presumably the complainant is not interested to prosecute the matter. While writing this order, the learned counsel for the complainant submitted that the complainant is prepared to appear before the court in the afternoon session, by flying from Kannur, which prayer stands allowed. Call at 4 p.m. 4.15 pm 22.11.2008 Case taken up. Complainant is not present. As a last chance, posted for evidence of complainant to 25.11.2008" (underline supplied) But in spite of the proceedings dated 20.9.2008 and 22.11.2008, the complainant was again absent on 25.11.2008. The proceedings of the court below dated 25.11.2008 is relevant which is extracted herein for convenience. "25.11.08 Complainant absent. Accused exempted. Complainant is not present. As a last chance, posted for evidence of complainant to 25.11.2008" (underline supplied) But in spite of the proceedings dated 20.9.2008 and 22.11.2008, the complainant was again absent on 25.11.2008. The proceedings of the court below dated 25.11.2008 is relevant which is extracted herein for convenience. "25.11.08 Complainant absent. Accused exempted. Complainant applied again on the ground that the complainant being a member of legislative assembly is required to attend the assembly session and expressing his disability to appear before court, during the assembly session and requesting for a posting on 15th,16th,17th,18th,19th of December,2008. The grounds urged being valid, the petition stands allowed and posted for evidence of complainant on 15.12.2008." (underline supplied) Thus, the complainant appeared on 15.12.2008 on which date, he was examined as PW1 and his chief examination could not be completed and therefore, for continued examination of PW1, the case was adjourned and posted to suit the convenience of both the parties to 17.1.2008. But, on the subsequent two posting dates i.e., 17.1.2009 and 24.1.2009, the complainant was absent, but on those dates also, the learned Magistrate allowed the application for exemption and posted the case to 3.2.2009 for the continued examination of the complainant. From paragraph 4 of the impugned order, it appears that the case was posted at 3 p.m. on 3.2.2009 at the request of the counsel for the complainant to continue the chief examination. Still then, the complainant was not present. It is under the above factual and procedural background, the learned Magistrate rejected the prayer contained in Crl.M.P.Nos.418 and 419 of 2009. Therefore, it can be seen that the trial court refused to adjourn the case any further in the backdrop of the above procedural facts and circumstances. Thus, if the Presiding Officer is of the opinion that the submission or prayer for adjournment is made as improper, illegal and against the interest of justice, it is left open to the court to straight away reject such prayer, even if the said prayer is made by the counsel who is holding vakalath for the party, for whom the adjournment is sought for. 15. In the present case, as I indicated earlier, two applications were filed in the trial court by the counsel for the complainant. 15. In the present case, as I indicated earlier, two applications were filed in the trial court by the counsel for the complainant. According to me, the approach of the learned Magistrate with respect to the above two applications have to be examined in the backdrop which I indicated earlier, which shows that the presence of the complainant is absolutely necessary and inevitable and indispensable for the progress of the trial. In the decision reported in Alice George case (cited supra), this Court has held as follows:- "I am unable to understand why the presence of the complainant should be insisted on every date of posting. S.256 of the Code of Criminal Procedure does not according to me oblige the court to insist on personal appearance of the complainant on all dates of posting. I am unable to understand what provision of law or principle of orderly procedure is offended if the complainant is permitted to be represented on all dates of posting through his counsel and insistence is made on his personal presence only on days when the progress of the case requires his presence. ............................" In the present case, previously the absence of the complainant was condoned and adjournments were granted. After the chief examination of the complainant as PW1 on 15.12.2008, to continue the chief examination, two more postings were granted to the complainant on 17.1.2009 and 24.1.2009 on which date also the complainant was absent and examination could not continue. From the impugned order, it appears that Advocate Sri.Manoj Kumar was not holding vakalath for the complainant in the trial court. No Advocate holding vakalath was seen present on the date of the impugned order in spite of the factual background of the case and the proceedings of the court below. In paragraph 18 of the decision cited supra, this Court has held as follows:- "18. The plight of the trial lawyer may not be ignored, it is urged, it would hurt his interests if the complainant/accused is not obliged to appear in court, it is submitted. The lawyer would have no control over his client. Necessary instructions and assistance from the client will not be available from time to time, it is pointed out. It would enhance the burden of responsibility of the lawyer as he will have to be present in court to represent his client. The lawyer would have no control over his client. Necessary instructions and assistance from the client will not be available from time to time, it is pointed out. It would enhance the burden of responsibility of the lawyer as he will have to be present in court to represent his client. Court may not ignore the interests of counsel, it is urged. I am unable to accept this contention also. I may not have adverted to this aspect at all but for the concern and earnestness with which this aspect was highlighted at the bar. The fact that the personal presence of the accused is not insisted on all dates of posting in court, does not at all affect the obligation of the accused to instruct his lawyer from time to time. If he has no instructions from the accused and is not aware of the whereabouts of the accused, a counsel would certainly be justified in reporting no instructions whereupon the court would certainly take necessary steps for enforcing the personal appearance of such an accused, who is not present and is not represented by his counsel. The interests of the lawyer cannot be a crucial consideration at all in this context. The system exists not for the lawyer or the Judge but for the polity to ensure justice to them. Judges should earn ( and the bar must confer on them) the priceless asset of approval and affection, by their sense of justice, courtesy and hard work and not by populist procedures, decisions or interpretations. The argument that if such insistence on personal appearance of the accused/complainant on all dates of posting is not made, the interests of the lawyer would be jeopardized cannot be accepted." In the light of the above decision, I find no ground to interfere with the reasons assigned by the learned Magistrate in not acting upon the petition filed on the grounds connected with the demise of the grandmother of Advocate Sri.Manoj Kumar who is not holding vakalath. It is pertinent to note that the case was taken on that particular day at 3 p.m. at the instance of the counsel for the complainant and therefore, it can be safely concluded that even if the senior counsel appearing for the complainant has any inconvenience, any other counsel could have appeared before the court below. It is pertinent to note that the case was taken on that particular day at 3 p.m. at the instance of the counsel for the complainant and therefore, it can be safely concluded that even if the senior counsel appearing for the complainant has any inconvenience, any other counsel could have appeared before the court below. It is also relevant to note that no specific reason is assigned in Crl.M.P.No.418 of 2009 for the absence of the complainant, even though there was some inconvenience for the said Manojkumar, the instructing counsel to appear before the court. As I indicated earlier, in that petition which is filed under Section 256(1) of the Cr.P.C., the reason stated reads as follows:- "The petitioner is the complainant in the above case. He could not unfortunately personally appear in the case as he had been held up in Kannur due to unavoidable reasons. In addition to that the instructing counsel's grand mother passed away, which was communicated to the complainant. He therefore, will not be in a position to attend the case." No convincing reason, for his absence, is forthcoming. The complainant before the court below, whoever be he, and irrespective of his political official, fiscal magnitude is expected to appear before the court below and prosecute the matter vigilantly. Had the complainant personally appeared before the court below on the date of the impugned order and made a request for adjournment, one can realise the genuineness and sincerity of such prayer. But, on a consideration of the antecedents and approach of the complainant with respect to the proceedings pending before the court, as evident from B diary proceedings, any body can come to a conclusion that the complainant is not at all interested to co-operate with the proceedings of the trial and his intention is to protract the matter and the said conclusion cannot be held as baseless. So, according to me, the trial court is fully justified in dismissing the above two applications filed on behalf of the complainant, especially in the factual and procedural background of the case in hand. 16. In the matter of criminal administration of justice, the trial court especially the Magistrate Court are the primary units of Indian judiciary. Now, it is the concern and anguish of the Indian Judiciary about the arrears of cases pending before various courts. 16. In the matter of criminal administration of justice, the trial court especially the Magistrate Court are the primary units of Indian judiciary. Now, it is the concern and anguish of the Indian Judiciary about the arrears of cases pending before various courts. The heaping of arrears in criminal courts particularly in the backdrop of the new legislation particularly the amendment brought to the Negotiable Instruments Act, the criminal courts are flood with several prosecutions and the same affected the administration of criminal justice. In a recent decision, the Honourable Apex Court in Imtiyaz Ahmad v. State of Uttar Pradesh and others [Crl.A.Nos.254-262 of 2012] has held as follows:- ".................. Unduly long delay has the effect of bringing about blatant violation of the rule of law and adverse impact on the common man's access to justice. A person's access to justice is a guaranteed fundamental right under the Constitution and particularly Article 21. Denial of this right undermines public confidence in the justice delivery system and incentivises people to look for short-cuts and other fora where they feel that justice will be done quicker. In the long run, this also weakens the justice delivery system and poses a threat to Rule of Law." It was further held as follows:- "34. It may not be out of place to highlight that access to justice must not be understood in a purely quantitative dimension. Access to justice in an egalitarian democracy must be understood to mean qualitative access to justice as well. Access to justice is, therefore, much more than improving an individual's access to courts, or guaranteeing representation. It must be defined in terms of ensuring that legal and judicial outcomes are just and inequitable (See United Nations Development Programme, Access to Justice -Practice Note (2004)]" In this juncture, it is also relevant to note that the criminal trial courts are not only meant for the IPC offences and also given jurisdiction and authority to settle dispute involves domestic as well as the welfare issues. Therefore, when the trial court especially the Magistrate court considering the request or application for adjournment, either at the instance of the petitioner/complainant or accused/counter petitioner, the Presiding Officer is bound to bear in mind the aforesaid facts, circumstances and the task of the courts to clear the arrears. Therefore, when the trial court especially the Magistrate court considering the request or application for adjournment, either at the instance of the petitioner/complainant or accused/counter petitioner, the Presiding Officer is bound to bear in mind the aforesaid facts, circumstances and the task of the courts to clear the arrears. Thus, while considering the rationality of an order passed under Section 256(1) of Cr.P.C., the appellate court is also bound to consider the above facts, otherwise there is no meaning in expressing any concern or anguish about the arrears pending before the trial courts. That does not mean that the criminal courts are always bound to reject and dismiss, bona fide prayer adjournment of the case. In the present case, as I indicated earlier, the complainant was given sufficient opportunities and accommodations to prosecute his complaint, but he did not avail those opportunities and his presence on the date of the impugned order was absolutely inevitable for the progress of the trial and therefore, the trial court is fully justified in acquitting the accused by invoking Section 256(1) of the Cr.P.C. 17. Another ground advanced by learned counsel for the appellant is that the learned Magistrate issued the order without application of mind and on wrong understanding of the various provisions of the procedure and law and particularly, the provisions of the Evidence Act, especially when the complainant was examined in part. I am unable to endorse the above contention of the learned senior counsel. From the B diary proceedings and particularly from the proceedings, which I extracted hereinbefore, shows that the learned Additional Chief Judicial Magistrate has granted maximum accommodation for the complainant considering his official positions and ample opportunities were given to him to adduce evidence in support of his complaint. The complainant did not avail of those opportunities. The learned Magistrate in his order particularly in paragraph 7 has observed which reads as follows:- "7. The complainant did not avail of those opportunities. The learned Magistrate in his order particularly in paragraph 7 has observed which reads as follows:- "7. Since the hearing of the case has been adjourned to this day specifically on the request of the complainant himself and the complainant having made himself absent without any reason at all, which according to the complainant was "unavoidable reason", the continuance of the proceedings seems to be not seriously intended by the complainant." It is further found as follows:- "..................Though the complainant was examined in part, the complainant has not been subjected himself for cross examination and the partial statements recorded in the case cannot be termed as 'evidence' tested by cross- examination." From the above passage of the order impugned and from the other facts stated in the order, it can be seen that the learned Magistrate has applied his mind properly and came to his own judicial conclusion. The learned counsel submitted that the finding of the court below that the deposition recorded during the examination of the complainant as PW1 in part cannot be treated as evidence due to absence of cross-examination is illegal by virtue of Section 137 of the Evidence Act. In support of the above contention, the learned counsel pointed out that if the defence is not cross-examining the complainant, on the facts narrated during the chief examination, there is no illegality in acting upon the statement so recorded and treating the same as evidence. It is true, if the defence is not cross- examined deliberately in spite of opportunity given, there is no legal bar in acting upon the evidence recorded during the chief examination of a witness or on the deposition recorded in part towards chief examination. But, in the present case, that stage has not arrived and the right to cross-examination arises only when the chief examination is completed and it is then for the adverse party or his counsel to decide whether a cross- examination of such witness is required after having evaluation of the deposition of that witness in chief. Therefore, the full authority is upon the adverse party to decide whether the witness be cross-examined or not and if the decision is in the negative, the same is to be conveyed to the court and accordingly, 'No cross' would be recorded. Therefore, the full authority is upon the adverse party to decide whether the witness be cross-examined or not and if the decision is in the negative, the same is to be conveyed to the court and accordingly, 'No cross' would be recorded. Therefore, the admissibility of the deposition in chief examination as evidence is only subject to the option of the adverse party and hence, without affording an opportunity to cross-examine or without ascertaining the option of the adverse party, the deposition in chief cannot be treated as evidence. As the complainant miserably failed to appear himself for completing the chief examination without any proper explanation and convincing reasons, the learned Magistrate could not proceed with the trial of the case. As the order impugned is only under Section 256(1) and not on merits of the case put forward by the complainant and also not on the basis of partly recorded chief examination of the complainant, according to me, no further probe is necessary at this stage. As the complainant was not co-operating with the trial of the case, by subjecting himself to continue the chief examination, according to me, the learned Magistrate is correct in his finding that the complainant is not interested and therefore, it cannot be stated that such findings and order are without application of judicial mind. 18. In the decision reported in Associated Cement Co.Ltd. v. Keshvanand [1998 Crl.L.J.856], in paragraph 18 of the decision, it is held as follows:- "18. Reading the Section 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 personal 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. 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." (underline supplied) 19. Having regard to the facts and circumstances involved in the case on hand, according to me, the dictum laid down by the Honourable Apex Court in Associated Cement Co. Ltd. (cited supra) is squarely applicable in the present case. I have already indicated the facts and circumstances involved in the case and the various steps taken as per the proceedings of the court below till the issuance of the impugned order. In the light of the decisions of the various High Courts reported in State of Bihar v. Ayodhya Sharma Sudhakar and others [1973 Crl.L.J.896 (Patna High Court)], The Agricultural Produce Market Committee, Raichur v. M/s. C.S.Tandur Brothers and Others [1981 Crl.L.J. 463], In re E.Elumalai [1971 Crl.L.J.1396] and Priyadarshini Cements Ltd. v. State of A.P. [2002 Crl.L.J.4465 (A.P.)], it is incumbent upon the learned Magistrate to pass an order as to why the case is to be proceeded or to be adjourned when the complainant is absent. On a reading of Section 256, it can be seen that the Magistrate is granted discretionary power, but such power required to be exercised with judicial caution and according to me, Section 256 of Cr.P.C. is imperative in nature and the Magistrate is bound to acquit the accused if the complainant is absent on the date fixed for the appearance of the accused or the date to which the hearing is adjourned unless the Magistrate found that there are sufficient grounds to proceed with the case or for adjournment of the same. In the light of the decision of Apex Court cited supra, the discretion must be exercised judicially and fairly without impairing the cause of administration of criminal justice. As I indicated earlier, in the present case, the presence of the complainant was absolutely necessary and indispensable so as to complete his chief examination towards the progress of the trial. The trial court could not proceed further without completing the chief examination, but the complainant was reluctant in appearing before the court below and adducing evidence and the said facts are very clear and substantiated from the B diary proceedings of the court below. It is under the above backdrop of the case, the learned Magistrate, in exercise of his discretionary jurisdiction, acquitted the accused by invoking Section 256(1) of Cr.P.C. 20. In the light of the facts and circumstances involved in the case and particularly, the procedure adopted by the learned Magistrate towards the trial of the case, it cannot be said that the findings and order of the learned Magistrate are vitiated due to arbitrariness, illegality or impropriety. The learned Magistrate invoked Section 256(1) of Cr,P.C. and acquitted the accused by assigning his own judicial reasons. The appellant has miserably failed to make out a case so as to interfere with the order issued by the learned Magistrate in exercise of his judicial discretion. Therefore, the order issued by the learned Magistrate is confirmed. In the result, this appeal is devoid of any merit and accordingly the same is dismissed.