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2012 Supreme(Mad) 4787
THE MADURAI BENCH OF MADRAS HIGH COURT
M. Venugopal, J.
K. Mohanan
Versus
Ms. Saraswathy
Crl. A. (MD) No. 203 of 2012
Decided On : 30 November 2012
V.M. Balamohan Thampi, for Appellant I. Mohammed Razra, for Respondent
The main legal point established in the judgment is the interpretation of Section 256(1) of the Code of Criminal Procedure, emphasizing its directory nature and the importance of good faith in legal proceedings.
Headnote:
Acquittal - Criminal Appeal - Section 256(1) of Cr.P.C. - The court discussed the provisions of Section 256(1) of the Code of Criminal Procedure, emphasizing that the section is only directory in nature and not mandatory. The court highlighted that the absence of the complainant or their counsel cannot be a reason for routine acquittal, and emphasized the importance of good faith in the proceedings. The court set aside the order of acquittal and allowed the criminal appeal, subject to the condition of payment to the Mediation and Conciliation Centre.
Fact of the Case:
The appellant/complainant appealed against the order of acquittal passed by the trial Court, citing non-appearance for cross-examination and illegal acquittal as per Section 256(1) of Cr.P.C.
Finding of the Court:
The court found that the trial Court's order of acquittal was set aside, and the criminal appeal was allowed, subject to the condition of payment to the Mediation and Conciliation Centre.
Issues: The issues revolved around the non-appearance of the complainant for cross-examination, the legality of the acquittal as per Section 256(1) of Cr.P.C., and the subsequent appeal against the order of acquittal.
Ratio Decidendi: The court emphasized that Section 256(1) of the Code of Criminal Procedure is only directory in nature and not mandatory, and highlighted the importance of good faith in the proceedings.
Final Decision: The criminal appeal was allowed, and the order of acquittal passed by the trial Court was set aside.
1. The appellant/complainant has preferred the instant Criminal Appeal as against the order of acquittal dated 30.5.2012 in C.C. No. 40 of 2012 passed by the Learned Fast Track Court No. II, Nagercoil (Magisterial level).
2. The Learned Judicial Magistrate (Fast Track Court No. II), Nagercoil in C.C. No. 40 of 2012 on 30.5.2012 has inter alia opined that although the presence of P.W.1/Complainant for the purpose of cross-examination is very much essential and also it has been made clear that no further adjournment for the purpose of cross-examination will be granted and further more, his presence is required for the purpose of cross-examination, on 23.5.2012, he has not appeared before the Court (in spite of specific direction in this regard has been issued to him) and added further, there has been no representation on the side of the appellant/complainant and consequently, the respondent/accused has been acquitted as per Section 256 (1) of Cr.P.C., owing to the non-appearance of the appellant/complainant.
3. Feeling dissatisfied that the order of acquittal passed by the trial Court in C.C. No. 40 of 2012 on 30.5.2012, the appellant/complainant has preferred the present Criminal Appeal on various grounds, raising the plea that the appellant/complainant has been examined in chief on 4.4.2007 and from that time onwards, he has not been cross-examined on the side of the respondent/accused and in any event, the impugned order passed by the trial Court in acquitting the respondent/accused as per Section 256(1) of Cr.P.C., is illegal in Law.
4. Per contra, it is the submission of the Learned counsel for the respondent/accused that the appellant/complainant has been specifically directed by the trial Court to appear on 23.5.2012, when the matter has been posted as a last chance and since Advocates’ boycotted the Court, the cross-examination of appellant/complainant (P.W.1) has since been adjourned to 30.5.2012 and also it has been made clear that no further adjournments will be granted. Continuing further, in spite of the aforesaid specific direction issued by the trial Court, the appellant/complainant (P.W.1) has not chosen to appear on 30.5.2012, when the matter has come up for further hearing and on that day, there has been no representation on behalf of the appellant/complainant either in person or through counsel. Therefore, the trial Court has been perforced to acquit the Respondent/Complainant by resorting to the ingredients of Section 256 (1) of Cr.P.C.
5. Admittedly, there is no provision in the Code of Criminal Procedure which enjoins a Learned Magistrate to revive a case after an order of acquittal has been passed by him. In the instant case, although a direction has been given specifically by the trial Court to the appellant/complainant to appear on 23.5.2012, on that day, due to boycott of Courts by Advocates, the cross-examination of the appellant/complainant (P.W.1) could not be made and the matter has been adjourned to 30.5.2012. Even on 30.5.2012, the appellant/complainant appears to have adopted a lackadaisical approach or a liaise fair attitude and he had not appeared before the Court either in person or through counsel. Only under such circumstances, the trial Court was constrained to acquit the respondent/accused.
6. It cannot be gain said that the ingredients of Section 256 of Code of Criminal Procedure, can be invoked by the Learned Magistrate in a summons case where the Complainant has not appeared before him or does not appear. Even though the Learned Judicial Magistrate has got discretion to acquit the accused by resorting to the provisions of 256(1) of the Code of Criminal Procedure, for non-appearance of the Complainant or his counsel, yet this Court is of the considered view that the Learned Magistrate must be cautious and circumspect in passing an order of acquittal owing to the non-appearance of the Complainant or counsel. As a matter of fact, a reading of the ingredients of 256(1) of the Code of Cri
