Accused to be acquited if complainant remains absent ?

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL MISC.APPLICATION (FOR QUASHING SET ASIDE
FIR/ORDER) NO. 10625 of 2016

KISHORBHAI S/O. SOGNUMAL MATAI
V
STATE OF GUJARAT

CORAM:  MR.JUSTICE J.B.PARDIWALA
Date : 04/04/2017

1. Rule returnable forthwith. Mr. Sandip Patel, the learned counsel, waives service of notice of rule for and on behalf of the respondent No.2 and Ms. Thakore, the learned APP, waives service of notice of rule for and on behalf of the respondent No.1.

2. By this application under section 482 of the Code of Criminal Procedure, 1973, the applicant-original complainant, seeks to invoke the inherent powers of this Court praying for quashing of the order dated 01.10.2015 passed by the learned JMFC, Vadodara in the Criminal Case No.16591 of 2008, by which, the learned Magistrate dismissed the complaint for nonprosecution.

3. Section 256 of the Code of Criminal Procedure, reads as under;

“(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.”

4. Thus, section 256 makes it clear that if the complainant fails to appear, the Magistrate shall acquit the accused, unless for some reason, he thinks it proper to adjourn the hearing of the case to some other day.

5. A preliminary objection is raised on behalf of the respondent No.2-original accused as regards the maintainability of this application under section 482 of the Code. According to Mr. Patel, there is no denying that the dismissal of the complaint, in default, under section 256, entails the acquittal of the accused. Once an accused has been acquitted of the offence, the law provides the remedy by way of an appeal against the order of acquittal under section 378(4) of the Code.

6. To meet with such preliminary objection raised by the learned counsel appearing for the respondent No.2, Mr. Poojara, the learned counsel appearing for the applicant has invited my attention to a decision of the Supreme Court in the case of Punjab State Warehousing Corp., Faridkot vs. Shree Duragji Traders Ors., 2011 (14) SCC 615, wherein the Supreme Court has taken the view that availability of alternative remedy of filing an appeal is not an absolute bar to entertaining an application under section 482 of the Code. I may quote the relevant observations made by the Supreme Court;

“9. The short question that falls for consideration is
whether in the fact situation the High Court was justified
in declining to exercise its jurisdiction under Section 482
of the Code?

10. It is trite law that the inherent power of the High
Court ought to be exercised to prevent miscarriage of
justice or to prevent the abuse of the process of the Court
or to otherwise secure the ends of justice. The Court
possesses wide discretionary powers under the Section to
secure these ends. In this behalf it would be profitable to
refer to the decision of this Court in Jeffrey J. Diermeier
Anr. Vs. State of West Bengal Anr.4, wherein one of us
(D.K.Jain, J.), speaking for the bench, explained the scope
and ambit of inherent powers of the High Court under
Section 482 of the Code as follows:

“20.The Section itself envisages three circumstances
under which the inherent jurisdiction may be
exercised, namely,

(i) to give effect to an order under the Code; (ii) to
prevent abuse of the process of Court; and (iii) to
otherwise secure the ends of justice. Nevertheless, it
is neither possible nor desirable to lay down any
inflexible rule which would govern the exercise of
inherent jurisdiction of the Court. Undoubtedly, the
power possessed by the High Court under the said
provision is very wide but it is not unlimited. It has to
be exercised sparingly, carefully and cautiously, ex
debito justitiae to do real and substantial justice for
which alone the court exists. It needs little emphasis
that the inherent jurisdiction does not confer an
arbitrary power on the High Court to act according to
whim or caprice. The power exists to prevent abuse of
authority and not to produce injustice.

22. In Dinesh Dutt Joshi v. State of Rajasthan [(2001) 8
SCC 570], while dealing with the inherent powers of
the High Court, this Court has observed thus (SCC p.
573, para 6):

“6. …The principle embodied in the section is based
upon the maxim: quando lex aliquid alicui concedit,
concedere videtur et id sine quo res ipsae esse non
potest i.e. when the law gives anything to anyone, it
gives also all those things without which the thing
itself would be unavailable. The section does not
confer any new power, but only declares that the High
Court possesses inherent powers for the purposes
specified in 4 (2010) 6 SCC 243 6 the section. As
lacunae are sometimes found in procedural law, the
section has been embodied to cover such lacunae
wherever they are discovered. The use of
extraordinary powers conferred upon the High Court
under this section are however required to be
reserved, as far as possible, for extraordinary cases.”

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11. Bearing in mind the afore-stated legal position in
regard to the scope and width of the power of the
High Court under Section 482 of the Code, we are of
the opinion that the impugned decision is clearly
indefensible. As noted above, the High Court has
rejected the petition under Section 482 of the Code on
the ground of availability of an alternative remedy
without considering the seriousness of the nature of
the offences and the fact that the Trial Court had
dismissed the complaint on a hyper technical ground
viz. since the complainant had been appearing in
person, despite order dated 16th April 1999,
exempting him from personal appearance, the said
exemption order became redundant and the
complainant should have sought a fresh exemption
from personal appearance. We feel that such a view
defies any logic. An order of exemption from personal
appearance continues to be in force till it is revoked or
recalled.

12 We are convinced that in the instant case,
rejection of appellant’s petition under Section 482 of
the Code has resulted in miscarriage of justice.
Availability of an alternative remedy of filing an
appeal is not an absolute bar in 7 entertaining a
petition under Section 482 of the Code. As aforesaid,
one of the circumstances envisaged in the said
Section, for exercise of jurisdiction by the High Court
is to secure the ends of justice. Undoubtedly, the Trial
Court had dismissed the complaint on a technical
ground and therefore, interests of justice required the
High Court to exercise its jurisdiction to set aside such
an order so that the Trial Court could proceed with the
trial on merits. “

7. Mr. Poojara has also placed reliance on one decision of the Delhi High Court in the case of M/s. J.S. Engineering Works vs. The State Ors., Crl. M.C. No.1280 of 2014, decided on 1st December, 2014. I may quote the relevant observations as under;

“9. The first and foremost question which comes for
consideration is whether the dismissal of the complaint
by the trial court for non- appearance of the petitioner is
justified. At this juncture it is relevant to reproduce
Section 256 of Cr.P.C., which reads as under: –
“256. Non-appearance or death of complainant. – (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 nonappearance
of the complainant is due to his death.”

10. On a perusal of the aforesaid provisions of Section
256 of Cr.P.C., it is manifestly clear that the Magistrate
has discretionary powers to acquit the accused in the
absence of the complainant unless he thinks it fit to
adjourn the hearing for another day. Section 256 of
Cr.P.C. affords some deterrence against dilatory tactics
on the part of the complainant. This section affords
protection to an accused against such dilatory tactics of
the complainant. But it does not mean that if the
complainant is absent the Court is bound to acquit the
accused in invitum. If the Court considers that in a
situation it is proper to adjourn the hearing then the
Magistrate shall not acquit the accused. If the Magistrate
considers that personal appearance of the complainant
was required on that day the Magistrate has power to
dispense with his attendance and proceed with the case.

11. In S. Anand’s case (supra) relied upon by learned
counsel for petitioner, it was held that: –

“12. Section 256 of the Code provides for disposal of
a complaint in default. It entails in acquittal. But, the
question which arises for consideration is as to
whether the said provision could have been resorted
to in the facts of the case as the witnesses on behalf
of the complainant have already been examined.

13. The date was fixed for examining the defence
witnesses. The appellant could have examined
witnesses, if he wanted to do the same. In that case,
the appearance of the complainant was not
necessary. It was for her to cross-examine the
witnesses examined on behalf of the defence.

15. Presence of the complainant or lawyer would
have been necessary, as indicated hereinbefore, only
for the purpose of cross-examination of the
witnesses examined on behalf of the defence. If she
did not intend to do so, she would do so at her peril
but it cannot be said that her presence was
absolutely necessary. Furthermore, when the
prosecution has closed its case and the accused has
been examined under Section 311 of the Code of
Criminal Procedure, the court was required to pass a
judgment on merit of the matter.”

12. In Associated Cement Company’s case (supra) it was
held that the purpose of conferring power on the
Magistrate under Section 256 of Cr.P.C. is to deter
dilatory tactics on the part of the complainant, once he
sets in motion criminal proceeding by instituting a
complaint. The purpose being that accused is perforce
required to attend Court proceedings on dates fixed by
the Court and is thus put to harassment if the
complainant does not turn up in the Court on dates when
his presence is necessary. This provision afforded
protection to the accused against such tactics being
adopted by the complainant. This, however, does not
mean that if the complainant is absent the Court is duty
bound to acquit the accused. If the situation mandates
the Magistrate has the power to adjourn the hearing. On
the other hand, if the Magistrate considers that some
personal appearance of the complainant is not necessary
it has the power to dispense with his attendance and
proceed with the case. It is for the Court to consider
whether the presence of the complainant is necessary for
the progress of the case on the day when the
complainant is absent or the situation is such that the
case be adjourned to another date. If the situation
mandates that there is no reason to adjourn the case, the
Magistrate is empowered to dismiss the complaint and
acquit the accused.

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13. The ratio of aforesaid judgment in Associated Cement
Company’s case (supra) has been followed by the Apex
Court in S. Anand’s case (supra) and observed as under: –

“12. Section 256 of the Code provides for disposal of
a complaint in default. It entails in acquittal. But, the
question which arises for consideration is as to
whether the said provision could have been resorted
to in the facts of the case as the witnesses on behalf
of the complainant have already been examined.

13. The date was fixed for examining the defence
witnesses. The appellant could have examined
witnesses, if he wanted to do the same. In that case,
the appearance of the complainant was not
necessary. It was for her to cross-examine the
witnesses examined on behalf of the defence.

15. Presence of the complainant or lawyer would
have been necessary, as indicated hereinbefore, only
for the purpose of cross-examination of the
witnesses examined on behalf of the defence. If she
did not intend to do so, she would do so at her peril
but it cannot be said that her presence was
absolutely necessary. Furthermore, when the
prosecution has closed its case and the accused has
been examined under Section 311 of the Code of
Criminal Procedure, the court was required to pass a
judgment on merit of the matter.”

14. In the present case, the complaint was fixed for
arguments on application under Section 145(2) of NI Act
and the presence of petitioner was not necessary.

15. The second question which comes up for
consideration is whether the complainant can file a
petition under Section 482 of Cr.P.C. seeking setting
aside of dismissal of complaint as the remedy of filing
special leave to appeal is available.

16. It is correct that the dismissal of a complaint in a
summons case results in acquittal of the accused as
envisaged in Section 256 of Cr.P.C. It is also true that the
complainant can challenge the order of acquittal by filing
an application for special leave to appeal. A similar
question came up for consideration before the Apex
Court in „Punjab State Warehousing Corporation vs.
Shree Durga Ji Traders?, (2011) 4 SCC 615. In the said
case the High Court had dismissed the petition under
Section 482 of Cr.P.C. for setting aside of complaint in
default and restoration thereof by holding that dismissal
in default of complaint amounts to acquittal of accused
and statutory remedy exists in Cr.P.C., a petition under
Section 482 of Cr.P.C. cannot be entertained. The
Hon ble Supreme Court while considering various ?

judgments passed from time to time observed as under: –

“9. The short question that falls for consideration is
whether in the fact situation the High Court was
justified in declining to exercise its jurisdiction under
Section 482 of the Code?

10. It is trite law that the inherent power of the High
Court ought to be exercised to prevent miscarriage
of justice or to prevent the abuse of the process of
the court or to otherwise secure the ends of justice.
The Court possesses wide discretionary powers
under the section to secure these ends. In this behalf
it would be profitable to refer to the decision of this
Court in Jeffrey J. Diermeier v. State of W.B. [(2010) 6
SCC 243 : (2010) 2 Crl. M.C. No.1280/2014 Page 8 of
12 SCC (Civ) 656 : (2010) 3 SCC (Cri) 138] wherein
one of us (D.K. Jain, J.), speaking for the Bench,
explained the scope and ambit of inherent powers of
the High Court under Section 482 of the Code as
follows: (SCC p. 251, paras 20 22)
20. … The section itself envisages three
circumstances under which the inherent jurisdiction
may be exercised, namely, (i) to give effect to an
order under the Code; (ii) to prevent abuse of the
process of court; and
(iii) to otherwise secure the ends of justice.

Nevertheless, it is neither possible nor desirable to
lay down any inflexible rule which would govern the
exercise of inherent jurisdiction of the Court.
Undoubtedly, the power possessed by the High Court
under the said provision is very wide but is not
unlimited. It has to be exercised sparingly, carefully
and cautiously, ex debito justitiae to do real and
substantial justice for which alone the court exists. It
needs little emphasis that the inherent jurisdiction
does not confer an arbitrary power on the High Court
to act according to whim or caprice. The power exists
to prevent abuse of authority and not to produce
injustice.

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22. In Dinesh Dutt Joshi v. State of Rajasthan [(2001)
8 SCC 570: 2002 SCC (Cri) 24] , while dealing with
the inherent powers of the High Court, this Court has
observed thus: (SCC p. 573, para 6) „6. … The
principle embodied in the section is based upon the
maxim:quando lex aliquid alicui concedit, concedere
videtur et id sine quo res ipsae esse non potest i.e.
when the Crl. M.C. No.1280/2014 Page 9 of 12 law
gives anything to anyone, it gives also all those
things without which the thing itself would be
unavailable. The section does not confer any new
power, but only declares that the High Court
possesses inherent powers for the purposes specified
in the section. As lacunae are sometimes found in
procedural law, the section has been embodied to
cover such lacunae wherever they are discovered.
The use of extraordinary powers conferred upon the
High Court under this section are however required
to be reserved, as far as possible, for extraordinary
cases. ?

12. We are convinced that in the instant case,
rejection of the appellant’s petition under Section
482 of the Code has resulted in miscarriage of
justice. Availability of an alternative remedy of filing
an appeal is not an absolute bar in entertaining a
petition under Section 482 of the Code. As aforesaid,
one of the circumstances envisaged in the said
section, for exercise of jurisdiction by the High Court
is to secure the ends of justice. Undoubtedly, the trial
court had dismissed the complaint on a technical
ground and therefore, interests of justice required
the High Court to exercise its jurisdiction to set aside
such an order so that the trial court could proceed
with the trial on merits.”

17. In Subhash Chand’s case (supra) relied upon by
learned counsel for respondent, Hon ble Supreme Court ?
has not considered the question of maintainability of a
petition under Section 482 of Cr.P.C. against an order
dismissing the complaint in default resulting in acquittal
of the accused.

18. In the instant case, the complaint was filed in the
year 2011, after recording pre-summoning evidence and
respondent Nos.2 and 3 were summoned. The
respondent Nos.2 and 3 failed to appear on 07.10.2011
on which bailable warrants were issued against them.
Thereafter, respondent Nos.2 and 3 appeared on
24.03.2012. Notice under Section 251 of Cr.P.C. was
served on respondent Nos.2 and 3 on 03.04.2013. An
application under Section 145(2) of NI Act was filed and
the case was adjourned to 03.08.2013 for reply and
arguments on the said application. On 03.08.2013 the
complaint was transferred and the transferee court
adjourned the complaint to 28.09.2013. The petitioner/
complainant did not appear on 28.09.2013 and Court
notice was issued to complainant for 07.12.2013. Again
the complainant was absent on 07.12.2013 and the
complaint was dismissed for non- appearance of the
complainant and non-prosecution of the matter. It is not
clear whether the Court notice issued to the complainant
on 28.09.2013 was served or not.

19. Taking into account the aforesaid facts and
circumstances of the case, this Court is of the opinion
that it is a fit case whether the Court should exercise its
discretion under Section 482 of Cr.P.C. instead of
relegating the petitioner to avail his alternative remedy
of filing an application for special leave to appeal. “

8. It can be said that the acquittal of the accused was on a technical ground. The purpose of conferring the power on the Magistrate under section 256 of the Code, is to deter dilatory tactics on the part of the complainant, once he sets in motion the criminal proceedings by instituting a complaint. The purpose being that the accused is obliged to attend the Court proceedings on the dates fixed by the court and is thus put to harassment if the complainant does not turn up in the court on the dates when his presence is necessary. This, however, in my view, does not mean that if the complainant is absent, the court is duty bound to acquit the accused. If the situation demands or mandates, the Magistrate has the power to adjourn the hearing.

9. Thus, in view of the judgment of the Supreme Court referred to above, the preliminary objection as regards the maintainability of this application raised on behalf of the original accused is rejected. I must now consider whether there was any good reason for the learned Magistrate to dismiss the complaint under section 256 for non-prosecution.

10. It appears that on the date, on which, the complaint came to be dismissed for non-prosecution, the complainant could not remain present for being cross-examined by the accused.

11. I am of the view that one opportunity should be given to the complainant to make good his case.

12. In the result, this application is allowed. The impugned order passed by the learned Magistrate, dismissing the complaint under section 256 of the Code, is quashed. The proceedings are remitted to the court of the learned JMFC, Vadodara. The proceedings shall commence from the stage they had stopped on the complaint being dismissed for default.

Rule is made absolute to the aforesaid extent.
Direct service is permitted.
(J.B.PARDIWALA, J.)

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