SUBA SPINNERS Vs. ANBOLI YARNS

JUDGEMENT

(1.) This appeal against acquittal is preferred by the complainant in C.C.No.453 of 1997 on the file of learned Judicial Magistrate, Palladam challenging the order dated 22.12.1999, dismissing the complaint filed by him on the ground of non-appearance in a case under Section 256(1) Cr.P.C.

(2.) A perusal of the records discloses that the learned Magistrate called the above said C.C. filed by the appellant/complainant on 22.12.1999 and dismissed the complaint on the ground of non-appearance of the complainant. In his case, the learned Magistrate has passed a mechanical order simply on the ground that the complainant was not present on the date of hearing, viz., on 22.12.1999 either in person or by his pleader and acquitted the accused. It is also not stated in the order by the learned Magistrate that whether the accused was present or not on the said date of hearing. The order of the learned Magistrate on the face of it, is arbitrary and illegal.

(3.) It is well settled by the Hon ble Supreme Court of India, in Associated Cement Company Limited vs. Keshvanand (AIR 1998 Supreme Court Page 596), that, Two constraints are imposed on the Court for exercising the power under S.256. First is, if the Court thinks that in a situation it is proper to adjourn the hearing then the Magistrate shall not acquit the accused. Second is, when the Magistrate considers that personal attendance of the complainant is not necessary on that day the Magistrate has the power to dispense with his attendance and proceed with the case. When the Court notices that the complainant is absent on a particular day the Court must consider whether personal attendance of the complainant is essential on that day for the progress of the case and also whether the situation does not justify the case being adjourned to another date due to any other reason. If the situation does not justify the case being adjourned the Court is free to dismiss the complaint and acquit the accused. But if the presence of the complainant on that day was quite unnecessary then resorting to the step of axing down the complaint may not be a proper exercise of the power envisaged in the section. The discretion must, therefore, be exercised judicially and fairly without impairing the cause of administration of criminal justice.