ARUMUGHAM Vs. VALLIAMMAL

JUDGEMENT

(1.) THIS appeal is by the complainant against the order of acquittal under S. 256(1), Cr.P.C. The case in the lower court stood posted to 21-12-1978. The complainant and his counsel were absent on that day. The court acquitted the accused. According to the complainant, when the court took up for hearing one case after another, as his counsel had not come to court, he went out of the court to bring him and before he could reach the court with his counsel his case was called and the accused were acquitted.

(2.) THE main contention of the complainant, appellant is that when the case was called at 11 a.m. when all the cases were posted for hearing on that day he appeared before the court. When the case was called for the second time, he was not present in court as he had gone to bring his counsel. His absence was not wilful or wanton and therefore the acquittal of the accused-respondents under S. 256 Cr.P.C. is not warranted.

(3.) NEXT he drew my attention to a decision reported in Sowbagyam v. Kaliamurthi, 1970 Mad LW (Cri) 87 : 1971 CrLJ 437). This was a case under S. 323 I.P.C. and on the day of the adjourned hearing the complainant was not present either in person or by pleader. On the accused being acquitted, it was contended before the learned Judge, that the appellate court has powers to go into the sufficiency of the reason for the absence of the complainant petitioner and the order of acquittal may be reversed and further enquiry may be directed. Rejecting the contention, the learned Judge held that the order of the Magistrate cannot be said to be illegal. He acted within his powers and when the order is not illegal, it would not be right for the appellate court to interfere with the same.