PRABHALA SREERAMACHANDRA MURTHY Vs. KOTHA NAGABHUSHANAM

JUDGEMENT

(1.) THIS is an appeal filed by the complainant against the acquittal of the accused, the respondent ordered by the Magistrate under section 247, Criminal Procedure Code, for the non-appearance of the complainant. The alleged offences are under sections 341, 352 and 5o6, Indian Penal Code. The complaint Was filed on 16th November, 1971. The sworn statement of the complainant was recorded on 23rd November, 1971. Summons were issued for the appearance of the accused on 28th December, 1971. The complainant and his advocate were present. The accused did not appear. Then fresh summons were issued for his appearance on 12th January, 1972. On that day also the complainant and his advocate were present. The accused appeared. Copies of complaint were furnished to him. Thereafter it was posted to 21st January, 1972 for examination of the accused. For that hearing the complainant and his advocate failed to appear. Out of the four accused accused Nos. 2 and 4 appeared and accused Nos. 1 and 2 were absent. It is true that section 247, Criminal Procedure Code, enables a Magistrate to acquit the accused for non-appearance of the complainant. But that does not mean the Magistrate should acquit the accused in all cases of non-appearance of the complainant. For one thing on 21st January, 1972 the case was posted for examination of the accused only. For their examination the presence of the complainant is not necessary. Even in his absence the Magistrate could have proceeded to examine the accused. The examination of the accused also could not have been completed on that day because all the accused did not appear. It is only accused Nos. 2 and 4 appeared. In a recent judgment given by my learned brother Chinnappa Reddy, J., in Crl. Appeal Nos. 445 to 458 of 1969 delivered on 27th December, 1969 it was observed that criminal prosecutions are meant to bring offenders to justice and are launched in the interests of the public justice. Therefore whenever a complainant is absent and a situation arises in which the discretion given to the Magistrate under section 247, Criminal Procedure Code has to be exercised, the Magistrate should address himelf to the question how the cause of public justice would be best served and not straightway acquit the accused on the ground of the absence of the complainant. At the same time there should not be any undue harassment to the accused. Where an accused has been attending the Court but the complainant has been absenting himself continuously it will be a sound exercise of the discretion on the part of the Magistrate to acquit the accused to prevent harassment to him. On the other hand, when the accused has not even been served with summons, it will be a sound exercise of discretion to adjourn the hearing of the case instead of acquitting the accused for non-appearance of the complainant.

(2.) IN the present case, as already mentioned above, on the date when the accused were acquitted for non-appearance of the complainant the presence of the complainant was not absolutely necessary. The case was not posted for adducing evidence on behalf of the complainant. It was posted only for examination of the accused. Even for that purpoe all the accused also dtd not appear on that day. Under these circumstances the Magistrate should not have acquitted the accused on the ground of non-appearance of the complainant instead he should have adjourned the case. Accordingly the order of acquittal is set aside and the appeal is allowed and the lower Court is directed to proceed with the trial of the case in accodance with law in the light of the observations made above. Appeal allowed.