The discretion of the magistrate in deciding whether a case can proceed or be adjourned in the absence of the complainant and the advocate.

G. RADHAKRISHNA RAO, J.

( 1 ) THIS is an appeal filed by the complainant against the order of acquittal in s. T. C. No. 10/89 passed by the Additional Munsif Magistrate, Sattenapalli dated 12-10-1990.

( 2 ) THE learned Magistrate passed the following order:"the case was called on for hearing to-day to which it had been adjourned. The complainant not being present either in person or by pleader the accused be acquitted under Sec. 256 Cr. P. C. "

( 3 ) AS pointed out in M/s.-Signion Systems vs. Keonics Magnavision Computers this Court held that the High Court in an appeal filed is entitled to go into the sufficiency or otherwise of the cause for the absence of the complainant and set aside the order of acquittal. But, in that judgment it has not considered what is the effect of the absence of the Advocate and the complainant also. When a complaint is filed, the complainant is expected to be present irrespective of the fact whether the matter is posted for appearance of the accused or for any other purpose. When the complainant is called absent, atleast a representation must be made. No explanation is forthcoming why the Advocate was not present when the matter was called or why the request was not made on behalf of the advocate to pass over tine matter. So, when an Advocate was engaged for a particular purpose, and was not diligent enough in appearing before the Court or making an attempt to represent the Court, it is not the duty of the Court to adjourn the matter. In this connection the decision in P. Thimmappa vs. P. C. Thimmappa has to be taken into account. In that case this Court held that when the Magistrate found that the complainant was not present and no representation was made, it is not permissible for the Court to reinvestigate into the matter. When both the complainant and the Advocate not being present, it is for the Magistrate to apply the provisions of Section 256 Cr. P. C. Under such situation, it must be deemed that the original authority, i. e. , the learned magistrate is the best Judge to decide whether the matter can go on or it can be adjourned. It is not for the High Court to go into the matter. I feel that whenever the Advocate engaged was not present and has not made any arrangement to represent the case and the complainant was also not present, it is not desirable for the High Court to interfere in the matter. The contention that the Advocate was engaged in other Court is not a ground to adjourn the case. The Advocate is expected to make some arrangement to represent the Court on his behalf. When such an arrangement is not made, any averment made in the affidavit will not be of any avail. The Court will co-operate only when the Advocate made an arrangement to represent the Court that he was attending the other Court.

( 4 ) FOR the abovesaid reasons, the Criminal Appeal is dismissed.

Click Here to Read the rest of this document