SOWBAGYAM Vs. KALIAMUSTHI
LAWS(MAD)-1970-3-10
HIGH COURT OF MADRAS
Decided on March 03,1970

SOWBAGYAM Appellant
VERSUS
KALIAMUSTHI Respondents

JUDGEMENT

- (1.) THE complainant is the petitioner. She filed a complaint on 21-2-1968 and she gave the sworn statement on the same day before the Sub-Magistrate, Mayuram. Her complaint was for an offence under S. 323, Penal Code. Her sworn statement was recorded on 21-2-1968. THE case was adjourned to 4-3-1968. THE Sub-Magistrate called the case for hearing on 4-3-1968 to which date the case was earlier adjourned. THE complainant petitioner was not present either in person or by pleader. THErefore, the accused was acquitted under S. 247, Criminal P.C. Her grievance is that she lives in a remote village about 16 miles away from Mayuram, that she came with two witnesses and as she could not get seats in the bus, the complainant came by the next bus from Sankarapandal to Mayuram, that she came to the court few minutes after the case was called, that she claims to know that her case was dismissed for her absence, when the case was called, and that she requested the Sub-Magistrate to take the case on file by way of a petition on 4-3-1968, posted to the Sub-Magistrate which was returned to her on 5-3-1968.
(2.) IN these circumstances, Mr. Sridevan argued that under the appellate power vested in this court the sufficiency of the reason for the absence of the complainant petitioner may be gone into and the order of acquittal may be reversed and further enquiry may be directed. The learned counsel cited before me a number of decisions, some of which alone need merit my attention. IN the Division Bench decision in Nagarambilli Tonkya v. Jagannatha, 1926 AIR(Mad) 1009, Devadoss J. considers elaborately the position of law in the case before them and concluded in the following language : "This case has been referred to a Bench by Wallace J. by reason of the view taken by Jackson J. in Cri. R.C. 229 of 1925. IN that case, Jackson J., held that S. 247 must be strictly interpreted and the appearance of the complainant during any portion of the day was sufficient compliance with S. 247. With great respect. I am unable to agree with that view. We should not consider the hardships that may be caused to the complainant in construing the section. INstructions may be given to Magistrates not to dismiss cases under S. 247 unless they are satisfied that the complainant is keeping out of the way and to wait for a reasonable time to enable the complainant to appear, but the absence of such instructions would not be a ground for giving a forced construction to the very clear words of the section. The view of Jackson J. is opposed to the view taken by Hytchins J. in Kuttiyali v. Pari Makri, 1884 (7) ILR(Mad) 356. There the learned Judge overruled the contention that the magistrate should wait till the close of the day before he could act under S. 247.It is next contended that on the merits, the petitioner is entitled to have the order of the Magistrate set aside. The petitioner appeared with his witnesses at 11.30 a.m. and it is alleged that the case was taken up and dismissed five minutes before the appearance of the complainant. Though the Magistrate could very well have waited for a short time, it cannot be said that the order of the Magistrate is illegal. He acted within his powers and when the order is not illegal, it would not be right for this Court to interfere with it." * It is seen from this decision that since the year 1884 as evidenced by the two rulings in 1884 (7) ILR(Mad) 213 and 1884 (7) ILR(Mad) 356, Rangaswami Ayyangar v. Narasimhulu Nayak and Kuttiyali v. Pari Makri, the law has been settled and the practice has been uniform in consonance with the view expressed by Devadoss and Wallace JJ. Yahya Ali J. also followed the Bench decision of this Court in Natesa Naicker v. Mari Gramani, 1948 AIR(Mad) 45 and held that the view expressed by Jackson J. was contrary to the prevailing judicial opinion. The learned Judge sums up the position of law in the following language : "It will be apparent from the language of the section that when in a summons case the complainant does not appear, it is imperative on the part of the Magistrate to acquit the accused, unless there is a proper reason for adjourning the hearing of the case. It is not the case of the complainant that there was any such reason of which the Magistrate was aware at the time he called the case and the complainant was absent. In those circustances, there was no discretion in the matter the Magistrate was bound by the statute to acquit the accused. Where, therefore an order has been passed in conformity with statutory duty, it must be held to be a proper and correct order, and there can be no question of revising such an order merely because it would cause some hardship to the party." *
(3.) IN view of the reasoning in this paragarph, it is not contended before me by Mr. Sridevan that the Magistrate was aware at the time he called the case of any such reason for adjourning the hearing of the case. But the facts in Periasami v. State, 1962 Mad WN (Cri) 19 = 1962 AIR(Mad) 403) have no similarity or identity with the facts of the case. But Sadasivam J. sums the position very clearly in the following lauguage while considering the above case : "But the above decision is no authority for the position that a Magistrate should acquit and accused under S. 247, Criminal P.C. It is clear from the decision in that case the withnesses and police officers did not turn up for six hearings of the case and the Magistrate acquitted the accused after intimating the final hearing of the case to the police. S. 247, Criminal P.C. no doubt enjoins on the Magistrate to acquit the accused for the non-appearance of the complainant. But it also gives power to the Magistrate to adjourn the hearing of the case to some other day for proper reasons." * IN another decision in Muthukumaraswamy v. Solaimalai Perumal, 1967 Mad LW (Cri) 15, the case was adjourned to a Sunday and this question came to be considered again. The learned Judge observes : "Even though S. 247, Criminal P.C., enjoins on the magistrate to acquit the accused for non-apperance of the complainant, it also gives power to the Magistrate to adjourn the case for proper reasons and the proviso enables a Magistrate to dispense with personal attendance of the complainant when it is not necessary and the conviction of the accused even in the absence of the complainant is not illegal." *;


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