Vellaiyan vs Periyannan and Others

Ratnavel Pandian, J.—This appeal is directed by the complainant in C.C. No. 213 of 1980 on the file of the Judicial Second Class Magistrate, Namakkal, on being aggrieved by the order of acquittal of accused 1 to 13 acquitting the accused of the offences punishable under Ss. 147 and 323, I.P.C. by application of S. 256. Crl.P.C.

The brief facts of the case, as seen from the affidavit filed by the appellant as well as the documents available before this Court, can be stated as follows : The above case was the result of a private complaint preferred by the appellant on the allegation that on 11th June, 1980 he and four others sustained injuries as a result of the attack perpetrated by the respondents-accused using sticks, stones and cycle chains. In respect of the same occurrence, a complaint has been filed by one of the accused before the Sendamangalam Police which after investigation of that case has filed a charge-sheet against the appellant and 10 others for offences under Ss. 147, 341 and 324, I.P.C., and the said case is now pending before the Sub-Divisional Judicial Magistrate, Sankari, in C.C. No. 631 of 1980. The complaint given by the appellant before the Judicial Second Class Magistrate was numbered as C.C. No. 213 of 1980. As both the cases arose out of the same transaction ,the appellant herein filed a petition under S. 410. Crl.P.C., before the learned Chief Judicial Magistrate. Salem, praying for the transfer of the case in C.C. No. 213 of 1980 from the file of the Judicial Second Class Magistrate. Namakkal, to the file of the Sub-divisional Judicial Magistrate, Sankari, so that the said case might be heard along with C.C No. 631 of 1980. The transfer application was pending before the Chief Judicial Magistrate in Crl.M.P No. 291 of 1980. Be that as it may, it is stated by the appellant that the case in C.C. No. 213 of 1980 stood posted to 11th September, 1980 before the Judicial Second Class Magistrate. Namakkal, and that the appellant was advised by his counsel that it would not be necessary for him to attend the court on that day. However, the appellant would submit that he proceeded to the court on 11th September, 1980, but (sic) could not reach the court before 1:15 p.m. as the bus in which he travelled was stopped due to some altercation between the Sub-Inspector of Police, Rasipuram and the bus driver of the said bus and that when he reached the court, he came to know that his case had been disposed of as neither he nor his pleader appeared before the court and the accused were acquitted. The appellant would state that his absence in the court was neither wilful nor wanton and that if the order of acquittal is not set aside, grave prejudice would be caused to him.

Mr. T.S. Arunachalam, learned counsel appearing for the appellant, would submit that expediency of justice in this case warrants interference at the hands of this Court, though the order of the court below cannot be said to be illegal. Mr. T. Sudandiram, learned counsel appearing for the respondents/accused, would forcibly and vehemently contend that as neither the accused nor his counsel appeared before the court on the day appointed for the hearing of the case, namely on 11th September, 1980, the court had no other option but to invoke the provisions of S. 256, Cr.P.C. and acquit the accused and such an order, which is well within the law, does not deserve to be dislodged. He would further state that as the Court was not informed of any reason for the absence of the complainant, it had no proper reason before it to adjourn the case to some other day. In support of his contention, he relies upon a decision reported in Sowbagyam v. Kaliamurthi 1970 L.W. (Crl.) 87 wherein it has been held that an acquittal of the accused under S. 247 of the old Crl. P.C. corresponding to S. 256 of the new Code on the ground of absence of accused, cannot be said to be an illegal order and that it would not be also right for the High Court to interfere with such orders.

No doubt, ordinarily this Court will not interfere with such kind of orders, if the circumstances do not warrant or the expediency of justice does not require interference. It is no doubt true that under S. 256 , Crl. P.C., the Magistrate is vested with the power to acquit the accused invoking that section in case the complainant was absent and his counsel was not appearing before the court. But, the question would be whether any injustice is caused by such an acquittal. In the case, on hand, in my view, the circumstances warrant the interference by this Court, though this Court does not ordinarily interfere with such orders. The extract of B Diary shows that the case was taken on file on 3rd July, 1980 and the summons were directed to be issued to the accused. Then the case stood posted to 17th July, 1980, 31st July, 1980, 14th August 1980, 20th August, 1980 and ultimately to 11th September, 1980. Excepting on the last hearing of the case, namely on 11th September, 1980 the complainant had appeared before the court on all the four hearings of the case after it was taken on file on 3rd July, 1980. As submitted by the appellant in his affidavit, he has filed a transfer petition before the Chief Judicial Magistrate praying the transfer of the case from the file of the Judicial Second Class Magistrate. Namakkal, to the file of the Sub-divisional Judicial Magistrate, Sankari, before whom the case as against the appellant and 10 others was pending on a charge-sheet filed by the police regarding the same occurance. It is not known whether there was any stay of the proceedings of the case in C.C. No. 213 of 1980 by the Chief Judicial Magistrate, Salem, pending disposal of the transfer petition. However, the fact which is not in dispute now remains that a transfer petition has been filed already and that petition was pending on the day, namely, on 11th September, 1980. Further, it is stated by the complainant that he could not reach the court before 1:15 p.m. due to some altercation that ensued between a Sub-Inspector and the driver of the bus in which he travelled. Above all, it is seen from the extract of the Diary that on 11th September, 1980 even accused Nos. 11 and 13 were not present before the court. The case against the appellant and 10 others is not yet disposed of and the trial of the case has been stayed by this Court in Crl. M.P. No. 6163 of 1980. Therefore, the circumstances which I have indicated above do really warrant interference with the order of acquittal, at the hands of this Court, in the interest of justice. (See Vyapuri Mudaliar Vs. Vallammi and Others, .

In the result, the order of acquittal is set aside and the case is remanded to the file of the Judicial Second Class Magistrate, Namakkal. It is open to the appellant to move the Chief Judicial Magistrate, Salem, for the withdrawal of the case and transfer the same to the file of the Sub-Divisional Judicial Magistrate, Sankari, if he so chooses.

The criminal appeal is allowed, on the above terms.