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P. Thimmappa Vs. P. Chinna Thimmappa and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Case NumberCriminal Appeal No. 57 of 1966
Judge
Reported inAIR1969AP222; 1969CriLJ852
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 247, 417, 417(3) and 423
AppellantP. Thimmappa
RespondentP. Chinna Thimmappa and ors.
Appellant AdvocateJ.K. Sarma, Adv.
Respondent AdvocateK.V. Narasinga Rao, Adv.
Excerpt:
.....acquittal of respondent on ground of appellant's absence on day of final hearing - word 'day' mentioned in section 247 includes whole working day from 11.00 a.m. till 5.00 p.m. - appellant present at court at 11.45 a.m. - no latches found on part of appellant - appellant provided sufficient reason for his late coming - held, high court entitled to set aside order passed under section 247. - - , the high court is not entitled to go into the sufficiency of the cause of the absence of the complainant and set aside the acquittal if satisfied about it. this is precisely what the learned magistrate did in the instant case. venkataswami reddi, 1958 andh lt 295 is an authority for the proposition that the high court is entitled to go into the sufficiency of the cause for the absence of the..........247 criminal p. c. means the whole working day of the court or only the time when the case is called for hearing and whether even if the magistrate has jurisdiction to set aside the acquittal made by him under section 247 criminal p. c., the high court is not entitled to go into the sufficiency of the cause of the absence of the complainant and set aside the acquittal if satisfied about it.2. the appellant filed c. c. 375/65 against the respondents under sections 328 and 352 i. p. c. after the examination of the complainant and his witness was concluded, the case was adjourned to 25/9/65 to enable the respondents to examine the town inspector as a defence witness on their behalf. when the case was called on for hearing that day, neither the complainant nor his pleader was present.....
Judgment:

Venkateswara Rao, J.

1. This criminal Appeal, which is preferred by the complainant in CC. 375/65 on the file of the judicial Second Class Magistrate, Uravaents (accused) under Sec. 247 , Cr. P. C., has been referred to the Bench for a decision by our learned brother Venkatesam, J, questions involved viz., whether the word `day' in Section 247 Criminal P. C. means the whole working day of the Court or only the time when the case is called for hearing and whether even if the Magistrate has jurisdiction to set aside the acquittal made by him under Section 247 Criminal P. C., the High Court is not entitled to go into the sufficiency of the cause of the absence of the complainant and set aside the acquittal if satisfied about it.

2. The appellant filed C. C. 375/65 against the respondents under Sections 328 and 352 I. P. C. After the examination of the complainant and his witness was concluded, the case was adjourned to 25/9/65 to enable the respondents to examine the Town Inspector as a defence witness on their behalf. When the case was called on for hearing that day, neither the complainant nor his pleader was present with the result that the learned Magistrate passed an order acquitting the respondents under Sec. 247 , Criminal P. C. in the following terms;

'The case was called on for hearing today to which it had been posted/adjourned. The complainant not being present either in person or by Pleader, accused is acquitted under Sec. 247 , Criminal P. C.'

Aggrieved by this order, the complainant preferred this appeal which, as already stated, has been referred to the Bench having regard to the contentions raised before out learned brother.

Section 247, Criminal P. C. reads thus:

'If the summons has been issued on complaint, and upon the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything herein before contained, acquit the accused, unless for some reason he thinks proper to adjourn the hearing of the case to some other day'.

The section is thus mandatory in its terms and makes it obligatory on the Magistrate in all summons cases in which the complainant fails to make his appearance on the appointed day, to acquit the accused unless for some reason he thinks proper to adjourn the hearing of the case to some other day. This is precisely what the learned Magistrate did in the instant case.

3. The complainant swore to an affidavit in this case stating that he did attend the Court on 25-9-65 but could reach it only at 11.45 A. M. on account of late running of the bust that day and that he was informed by his advocate, who too happened to attend the Court late that day, that his case was called and the accused were acquitted at 11.40 A. M. The learned counsel for the appellant argued that the word `day' occurring in Section 247, Criminal P. C., means the whole working day of the Court and not merely the point of time when the case is called on for hearing and that the Court below should therefore have waited till 5.00 P. M., when alone the working hours of the Court came to a close, before exercising its jurisdiction, he relied upon a decision of this Court in Public Prosecutor v. T. S. Prasad, : AIR1960AP193 , wherein Sanjeeva Rao Naidu, J., as he then was, observed as follows;

'In all cases, where the complainant appears in the Court on the day of the hearing this Section does not apply at all. It is when the complainant does not appear at all during the Court hours, on the day of hearing, that the Magistrate could take upon himself the responsibility of throwing out a case and acquitting the accused. The section does not justify the acquittal of an accused merely because the complainant happens to be absent when the case is called. Such temporary absence from Court after the complainant had appeared gives no jurisdiction for the Magistrate to take action under Sec. 247 , Criminal P. C.'

This decision cannot however be interpreted to lay down a general principle that no order under Sec. 247 , Criminal P. C., can be passed in any case of absence of complainant till the end of the working hours of the Court or that such an order could be passed if only the complainant does not appear at all during the Court hours on the day of hearing. The learned Judge was dealing in that case with only a case of temporary absence of the complainant who happened to be present in the Court except for a short space of time when he went out to have his lunch. If, on the other hand, the contention urged for the appellant were to be accepted it would lead in many cases to the unenviable consequence of avoidable waste of public time and unnecessary accumulation of work in criminal Court. The working hours of the Court as prescribed by the Rules of Practice in this State are 11.00 A. M. to 5.00 P. M. with a short recess. If the word `day' occurring in Section 247. Criminal P. C. is to be understood as meaning the whole day and not merely the point of time when the particular case is called on for hearing, the Magistrate will be helpless and will have no jurisdiction to deal with any summons case under Section 247, Criminal P. C., even if the complainant should deliberately refrain from making his appearance till the last moment Instances of unscrupulous persons resorting to criminal Courts with private complaints against innocent persons with the avowed object of harassing them and managing to keep those cases pending for a long time by adopting dilatory tactics are not uncommon. There can therefore be no greater encouragement than to interpret counsel for the appellant. There may undoubtedly be many genuine cases in which the complainants find themselves unable to reach the Court in time for reasons beyond their control but the section itself gives discretion to the Magistrate to adjourn the hearing of such cases to some other day if he has reason to think it proper to do so. It cannot therefore be contended that acting under Section 247, Criminal P. C. without waiting till the Courts hours come to a close will cause hardship to complainants. In fact, a Division Bench of the composite Madras High Court consisting of Devadoss and Waller, JJ., held in Nagarampilli Tonkya v. Jagannatha, AIR 1926 Mad 1009, that:

'there is nothing in the section which would justify the construction that the words 'upon any day appointed for the appearance of the accused', etc., mean any time before the close of the working day and that the absence of the complainant at the time when the case is taken up for hearing is sufficient to justify the Magistrate in dealing with the case under Section 247, Criminal P. C., and acquit the accused, and the Court is not bound to wait till the close of the day to see, before proceeding under Section 247, Criminal P. C. whether the complainant appears'.

It was also observed that 'the object of Section 247, P. C. is to prevent the complainant from being dilatory in the prosecution of the case and if he does not care to be present when the case is called on, the accused is entitled to an acquittal unless the Magistrate chooses for reasons he thinks proper to adjourn the case'.

We do not see any reason to take a view different from the one expressed in the aforesaid Division Bench Decision of the Madras High Court which is binding on us. This decision was evidently not brought to the notice of the learned Judge who decided : AIR1960AP193 . The principle enunciated in AIR 1926 Mad 1009, has been followed in the recent decision of our High Court in Punnaiah v. Subbaiah, 1967-1 Andh WR 374. We must therefore find that the word 'day' in Section 247, Criminal P. C. as the complainant was admittedly not present in his Court when the case was called for hearing.

4. Our attention has not been invited to any provision in the Code which empowers the Magistrate to set aside the acquittal made by him under Section 247 Criminal P. C. To the other question raised by the learned Single Judge who referred the matter to Bench viz., as to whether the High Court is not entitled to go into the sufficiency of the cause for the absence of the complainant and set aside the acquittal of the respondent, our answer is in the affirmative as the High Court can exercise this power while dealing with an appeal preferred under Section 417(3) Cr. P. C. by the aggrieved complainant against the order of acquittal. Section 417(3) Cr. P. C. provides for an appeal by special leave from an order of acquittal passed in any case instituted upon a complaint. C. Lakshmamma v. M. Venkataswami Reddi, 1958 Andh LT 295 is an authority for the proposition that the High Court is entitled to go into the sufficiency of the cause for the absence of the complainant and set aside the acquittal if satisfied about it in an appeal under Section 417(3), Cr. P. C.

5. The only other question that remains to be considered in this appeal is as to whether the appellant was prevented by sufficient cause from attending the court of the Magistrate on the appointed day. The appellant belongs to Amidala village lying at distance of about ten miles from Uravakonda where the court of the Magistrate is situate. As already stated, he swore to an affidavit explaining that he could not reach the court before 11.45 a.m. on 25-9-65, the day fixed for examination of D. W. 1 in the case, on account of late running of the bus by which he travelled from his village to Uravakonda that day and that by the time he reached the Court, he was told by this advocate that the case was called at 11. 40 A. M. and an order acquitting the accused was also passed then. The appellant was represented by an advocate in that case but unfortunately, he too could not be present in the Court when the matter was called due to personal inconvenience as can be gathered from his affidavit. We are convinced that the late attendance of the appellant in the Court on the appointed day and the failure of his advocate to make any representation on his behalf when the matter was called on that day were due to reasons beyond their control and not on account of any laches on their part. In this view the appeal deserves to be allowed.

6. In the result, we set aside the acquittal of the respondents and direct the Court below to restore the case to its file in its original number and dispose it of according to law. The appeal is accordingly allowed.

BNP/ D. V. C.

7. Appeal allowed.


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