SOWBAGYAM Vs. KALIAMUSTHI

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 :

(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 :