Tuesday 22 September 2015

When court should not dismiss complaint case in default if complainant is absent on particular date?

What was the purpose of including a
 provision like Section 247 in the old Code (or
 Section 256 in the new Code). 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 protection to an accused
 against such tactics of the complainant. But
that does not mean if the complainant is absent,
the court has a duty to acquit the accused is
 17. invitum. Reading the section in
its entirety would reveal that two constraints
are imposed on the court for exercising the
power under the section. The 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. The 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 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." (Emphasis added)
 12.The Apex Court has thus reiterated that if the
 complainant remains absent, there is no duty on the
 Court to acquit the accused in invitum. In fact the
 Apex Court held that whenever it is noticed that
 complainant is absent on a particular date, the Court
 must consider whether personal attendance of the
 complainant was essential on that date for the progress
 of the case. It will be also necessary to refer to a
 decision of the Apex Court in the case of Mohd. Azeem
 v. A. Venkatesh and Anr [(2002) 7 Supreme Court Cases
 726] wherein the Apex Court held that a single default

 on the part of the complainant cannot be a ground to
 exercise power under section 256 of the said Code.
 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 CRIMINAL APPELLATE JURISDICTION
 CRIMINAL APPLICATION NO.1739 OF 2008
 India.. Fintrade Limited Applicant
 Versus
 Cherry.. Fashions Ltd & Ors. Respondents

CORAM : A.S.OKA, J.
DATE : 03rd April 2009.
Citation; 2009 ALLMR(cri)1657

 By the order dated 20th February 2009, this
 Court directed that the application and/or appeal will
 be heard at the stage of admission. Accordingly, the
 same is taken up for final dismissal. The applicant is
 the complainant in a complaint filed against the
 respondent Nos.1 to 4 alleging commission of offence
 under section 138 read with section 141 of the
 Negotiable Instruments Act, 1881 (hereinafter referred
 to as the said Act). The process was issued on the said
 complaint. By order dated 16th July 2007, the learned
 Special Metropolitan Magistrate purportedly exercised
 the power under section 256 of the Code of Criminal

 Procedure, 1973 (hereinafter referred to as the said
 Code). The learned Magistrate by the impugned order
 dated 16th July 2007 acquitted the 1st to 4th
 respondents-accused.
 2.The learned counsel appearing for the applicant
 has placed reliance on roznama of the complaint. He
 pointed out that on 11th June 2005 the learned
 Magistrate passed an order for issuing summons by
 publication as against the accused Nos.1 and 4. He
 pointed out that in terms of the order dated 11th June
 2005, publication of notice was made. He has placed
 reliance on the publication of notice of accused Nos.1
 to 4 in daily "Free Press Journal" dated 04th July 2005
 and Gujarati daily "Janmabhumi" dated 04th July 2005.
 The xerox copies of the relevant cuttings of the
 newspapers have been annexed. Inviting my attention to
 the roznama of the proceedings, he stated that case was
 adjourned on many occasions as the Court was vacant. He
 submitted that the applicant was diligently prosecuting
 the complaint and there was no default on the part of
 the applicant. He submitted that the ground on which
 the impugned order is passed by the learned Magistrate
 is completely erroneous.

 3.The learned counsel appearing for the accused
 has opposed the submissions made by the learned counsel
 appearing for the applicant. He submitted that the
 authorised representative of the applicant was absent on
 many dates. He invited my attention to roznama of the
 proceedings. He submitted that there is no explanation
 for the repeated absence of the authorised
 representative of the applicant. He submitted that the
 complaint is pending from the year 1998. He placed
 reliance on a decision of the Apex Court in the case of
 S. Rama Krishana v. S. Rami Reddy (Dead) By his legal
 representatives & Ors. [(2008) 5 Supreme Court Cases
 535]. He submitted that the view taken by the learned
 Magistrate that the complaint was required to be
 dismissed is certainly a possible view. He submitted
 that the learned Magistrate has rightly exercised the
 discretion under section 256 of the said Code. He
 submitted that in such a situation there is no option
 for the learned Magistrate but to exercise power under
 section 256 of the said Code. He placed reliance on a
 decision of Madras High Court in the case of Sowbagyam
 v. Kaliamusthi (1971 Criminal Law Journal 437). He
 submitted that it is imperative on the part of the

 learned Magistrate to acquit the accused when the
 complainant is absent on the date fixed for hearing of
 the complaint. He submitted that in an appeal against
 acquittal, the Court cannot embark on the enquiry
 regarding sufficiency of the reasons for the absence of
 the complainant or otherwise. The learned counsel
 appearing for the accused submitted that as the view
 taken by the learned Magistrate is certainly a possible
 view, no interference can be made in an appeal against
 acquittal.
 4.I have given careful consideration to the
 submissions. I have perused the roznama of the case.
 As noticed in several matters pending in the Courts of
 Metropolitan Magistrates in the City of Mumbai, the
 roznama in this case has not been properly maintained.
 The Chapter III of the Criminal Manual requires roznama
 to be maintained in a particular format. Paragraph 2 of
 Chapter III of the Criminal Manual is relevant which
 reads thus:
 "2.(i)A proceeding sheet (Roznama)
 should, in the form given below, be kept in
 English in all inquiries, trials and other

 cases. It is meant only as a guide and is not
 intended to be exhaustive. In uncontested
 non-cognizable cases, a proceeding sheet
 (Roznama) may not be maintained.
 (ii)The object of Roznama is to show in
 concise form the proceedings taken in each with
 the date of each proceeding. It is to be
 faithful history of the case and correct list
 and description of the exhibits, and at the same
 time, it should be so drawn up as to show all
 the details of the case at one view and yet be
 as concise as possible. It is not to include a
 record of ministerial acts, such as the receipts
 of bhatta or process fees, the preparation of
 summonses and the like.
 (iii)It must be kept from day to day as an
 original document. It may be written by a clerk
 but must be initialled or signed by the
 Magistrate at the end of the proceeding recorded
 every day."

 6.In paragraph 2 of Chapter III of the Criminal
 Manual the format of roznama has been prescribed. In
 the present case the roznama is not maintained in a
 chronological order. On the top of the left hand side
 of first page there is a roznama of the date starting
 from 18th July 2006 and ending with 11th June 2005. On
 the next page the roznama starts from 11th June 2005 and
 ends with 15th October 2003. The exhibit numbers given
 to vakalatnama, application etc have not been
 incorporated in the roznama. The provisions of Criminal
 Manual are binding even on the Courts of the
 Metropolitan Magistrate in the city of Mumbai. I am
 constrained to observe that the roznama has been
 maintained in a very shabby manner. I have already
 issued directions in another case to the learned Chief
 Metropolitan Magistrate to ensure that roznama is
 recorded in terms of the provisions of the Criminal
 Manual.
 7.Perusal of the roznama dated 11th June 2005
 shows that accused Nos.2 and 3 were present and the
 learned Magistrate issued summons to accused Nos.1 to 4
 by publication in newspapers. Exhibit D (collectively)
 annexed to the application for leave show that the

 compliance was made by the applicant by making necessary
 publication on 04th July 2005. The roznama shows that
 on the returnable date i.e on 16th August 2005 and
 thereafter on 03rd October 2005, 25th November 2005,
 15th December 2005, 23rd January 2006 and 07th March
 2006, the complaint was adjourned as the Court was
 vacant. The roznama shows that on 13th April 2006 the
 Court was vacant and the complaint was adjourned to 18th
 July 2006. On 18th July 2006, the board was discharged
 and therefore the complaint was adjourned to 13th
 September 2006. On 13th September 2006, 06th December
 2006 and 08th February 2007, the complaint was adjourned
 as the Court was vacant. On 14th May 2007, the
 applicant and his advocate were absent. But it is
 pertinent to note that the accused No.4 was present and
 he applied for exemption. The appearance of accused
 No.4 on that day shows that the applicant had complied
 with the earlier order of publication. The case was
 adjourned to 07th June 2007 on which day again the Court
 was vacant. Even on the next date i.e 27th June 2007
 the Court was vacant and the Complaint was adjourned to
 16th July 2007. The impugned order dated 16th July 2007
 reads thus:

 "On perusal of record, it appears that order
 dated 11.06.2005 is not at all complied with.
 The matter is of 1998 and unnecessary pending
 due to non-compliance of the orders.
 Considering these facts, the complaint is
 dismissed for want of prosecution and failure of
 the complaint to take necessary steps within
 reasonable time. Accused on record shall
 accordingly stand acquitted. Bail bond of the
 accused, if any, shall stand cancelled.
 Proceeding accordingly closed."
 8.The roznama of the earlier dates shows that the
 case was repeatedly adjourned as the Court was vacant.
 There is no entry in the roznama that on 16th July 2007
 or on any earlier date the complaint was fixed for
 recording of evidence. The observation made by the
 learned Judge that order dated 11th June 2005 was not
 complied with is factually incorrect. That is apparent
 from the record that as on 14th May 2007 the 4th accused
 had appeared and applied for exemption. The statement
 that due to non-compliance of the order, the complaint
 of the year 1998 was pending is again an incorrect

 statement. Perusal of the roznama shows that the
 applicant cannot be blamed if the complaint of 1998
 remained pending. On larger number of dates, the
 complaint was adjourned as the Presiding Officer was not
 available. The observation that the complainant has not
 taken the steps in reasonable time is again factually
 incorrect.
 9.In the light of this factual situation, it will
 be necessary to refer to the decision of the Apex Court
 in the case of S. Rama Krishna (supra) relied upon by
 the learned counsel appearing for the 1st to 4th
 respondents. In paragraph Nos.12 to 14 of the said
 decision the Apex Court has held thus:
 "12.The learned Magistrate in terms of
 sub-section (1) of Section 256 exercises wide
 jurisdiction. Although an order of acquittal is
 of immense significance, there cannot be any
 doubt or dispute whatsoever that the discretion
 in this case had been properly exercised by the
 learned Magistrate.

 13.The provisions of Section 256(1) mandate
 the Magistrate to acquit the accused unless for
 some reason he thinks it proper to adjourn the
 hearing of the case. If an exceptional course
 is to be adopted, it must be spelt out. The
discretion conferred upon the learned
Magistrate, however, must be exercised with
great care and caution. The conduct of the
complainant for the said purpose is of immense
significance. He cannot allow a case to remain
 pending for an indefinite period. The appellant
 had been attending the court for a long time,
 except on some dates where when remained absent
 or was otherwise represented by his advocate.
 He had to remain present in the Court. He
 attended the Court on not less than 20 occasions
 after the death of the original complainant. If
 in the aforementioned situation, the learned
 Magistrate exercised his discretionary
 jurisdiction, the same, in our opinion, should
 not have been ordinarily interfered with.
 14.The High Court was exercising its
 jurisdiction under sub-section (4) of Section

 378 of the Code of Criminal Procedure. The
 appeal preferred by the respondents was against
 a judgment keeping in view the limited role it
 had to play in the matter." (Emphasis added)
 10.As far as the decision of the Madras High Court
 in the case of Sowbagyam (supra) is concerned, in
 paragraph No.12 of the aforesaid decision of the Apex
 Court, it is held that there is a discretion vested in
 the learned Magistrate under section 256 of the said
 Code and therefore the view of the Madras High Court
 does not appear to be consistent with the view of the
 Apex Court. The view taken by the Madras High Court is
 that whenever the complainant is absent, it is
 imperative that the complaint should be dismissed.
 11.It will be also necessary to refer to another
 decision of the Co-ordinate Bench of the Apex Court in
 the case of Associated Cement Co Ltd v. Keshavanand
 [(1998) 1 Supreme Court Cases 687]. It is will be
 necessary to refer to paragraphs 15 to 17 of the said
 decision which read thus:

 "15.Section 256 of the Code of Criminal
 Procedure, 1973 (for short "the new Code") is
 the corresponding provision to section 247 of
 the old Code. The main body of both provisions
 is identically worded, but there is a slight
 difference between the provisos under the two
 sections. The proviso to Section 256 of the new
 Code is reproduced here:
 ."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."
 16.What was the purpose of including a
 provision like Section 247 in the old Code (or
 Section 256 in the new Code). 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 protection to an accused
 against such tactics of the complainant. But
that does not mean if the complainant is absent,
the court has a duty to acquit the accused is
 17. invitum. Reading the section in
its entirety would reveal that two constraints
are imposed on the court for exercising the
power under the section. The 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. The 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 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." (Emphasis added)
 12.The Apex Court has thus reiterated that if the
 complainant remains absent, there is no duty on the
 Court to acquit the accused in invitum. In fact the
 Apex Court held that whenever it is noticed that
 complainant is absent on a particular date, the Court
 must consider whether personal attendance of the
 complainant was essential on that date for the progress
 of the case. It will be also necessary to refer to a
 decision of the Apex Court in the case of Mohd. Azeem
 v. A. Venkatesh and Anr [(2002) 7 Supreme Court Cases
 726] wherein the Apex Court held that a single default

 on the part of the complainant cannot be a ground to
 exercise power under section 256 of the said Code.
 13.Turning to the facts of the present case, it is
 obvious that the reasons recorded by the learned Judge
 are completely erroneous and contrary to the record.
 Under no circumstances the said reasons could have been
 recorded by the learned trial Judge for exercising power
 under section 256 of the said Code. From 11th June 2005
 to 16th July 2007 the court had no presiding Judge on 14
 dates. On none of these dates the absence of the
 applicant has been recorded in roznama. On the dates
 prior to 16th July 2007 the Court was vacant. Even on
 16th July 2007 the case is not shown for hearing. The
 order of dimissal passed by the learned Judge is on the
 ground that order dated 11th June 2006 is not complied
 with. This is factually incorrect. Under no
 circumstances, the learned Judge could have taken the
 view which he has taken. Therefore, this is not a case
 where two views are possible. The impugned order is
 perverse. As held by the Apex Court power under section
 256 of the said Code cannot be exercised only on account
 of absence of the complainant and the learned Magistrate
 has to exercise discretion after considering the conduct

 of the applicant.
 14.Hence, I pass the following order:
 (i)The impugned order dated 16th July 2007
 is quashed and set aside.
 (ii)The complaint No.2613/SS/2005 is
 restored to the file of the learned
 Magistrate.
 (iii)The learned Magistrate will proceed with
 the complaint in accordance with law
 after issuing fresh summons to the
 accused.
 (iv)Hearing of the complaint is expedited.
 (A.S.Oka,J)

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