Point of Law: Power of Magistrate under Sec.256 Cr.P.C to acquit an accused should be exercised judicially, based on a definite conclusion that complainant no longer desires to prosecute complaint.

JUDGMENT :

Can an accused be perfunctorily acquitted under Section 256 (1) of the Code of Criminal Procedure is the point that arises for consideration in the appeal?

2. The appellant had filed C.C No.1960/2007 before the Court of the Judicial Magistrate of First Class – I, Thrissur, alleging the first respondent to have committed the offence under Sec.138 of the Negotiable Instruments Act (in short, ‘N.I Act’). The learned Magistrate acquitted the accused under Sec.256 (1) of the Code of Criminal Procedure (‘Cr.P.C’, in short) on the ground that the appellant was regularly absent.

3. Heard; Sri. K.B Gangesh, the learned counsel for the appellant and Smt.Seetha.S, the learned Public Prosecutor.

4. The learned counsel for the appellant argued that the learned Magistrate had committed a grave illegality in acquitting the accused without affording the appellant an opportunity to explain the reason for his absence. Although the complaint was posted for trial and the appellant was present in court on 17.10.2008, 24.11.2008 and 8.1.2009, the learned Magistrate referred the parties to the Adalat. As the dispute was not settled, the complaint was referred back to Court and was posted on 14.8.2009. By inadvertence, the appellant’s counsel had noted the posting date as 14.9.2009. Consequently, there was no representation for the appellant on 14.08.2009, and the impugned order was passed. The learned Magistrate hastily passed the impugned order without appreciating the fact that the appellant was diligently prosecuting the complaint. Hence, the impugned order may be set aside.

5. The learned Magistrate passed the impugned order in the below-mentioned lines:

“3. The complaint was taken on file and proceeded further. The complainant is absent. No application. Accused is present. Complainant is regularly absent. Even though specific direction has given for the appearance of the complainant, he has not turned up. The case is of the year 2007. The accused is regularly coming before the court. Since the complainant is not interested in conducting the case and he is regularly absent, the complaint is dismissed under Sec.256(1) Cr.P.C.”

6. It is apposite to extract Section 256 of the Code Of Criminal Procedure, which reads as follows:

(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.

7. In Govindan Nambiar v. Chidambareswara [1961 KLT 797], this Court speaking through Anna Chandy J (as she then was), while interpreting Sec. 247 of the Code of 1898(Old Code), an analogous provision to Sec.256 of the Cr.P.C., held thus:

“7. Section 247 is evidently intended to prevent dilatory tactics on the part of complainants and consequent harassment to accused persons. Like any other, the power under this section also has to be used judicially and judiciously and not in a manner that makes the remedy worse than the disease. It is not proper to throw out a case in a hasty or thoughtless manner when the complainant has proved his bona fides and shown himself vigilant in prosecuting the accused”.

8. Again, this Court, through the same learned Judge who authored Govindan Nambiar (supra) in Kunhumon v. Kotha and others [1962 KLT 781], held as under:

“8. I must say in this connection that instances are not