P. Janaki Amma, J.
1. The appeal is by a complainant against an order of acquittal under Section 256 Cr. P.C. The case stood posted on 21-10-1976. The complainant and his counsel were absent on that day. The accused who was present requested for an adjournment. However, the court acquitted the accused. The complainant would say that his absence was due to a mistaken impression that the case stood posted to 27-10-76. According to him, when the Bench clerk announced the date of hearing on the prevous hearing date, both himself and his counsel understood it as 27-10-76. It was only when he went to court on 27-10-1976 that he came to know that the case was taken up on 21-10-76 and the accused had already been acquitted on that day.
2. The main contention of the appellant is that the case stood posted for the day for return of summons and the court should have adjourned it to another date in order to enable the complainant to produce witnesses and should not have acquitted the accused.
3. Section 256(1) of the Criminal Procedure Code (1974) reads:
256. Non-appearance or death of complainant:
(1) If the summons has been issued on complaint, and on 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 hereinbefore contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day:
Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case.
4. The contention put forward on behalf of the accused-respondent is that the section enjoins that the accused should be acquitted in cases where the complainant is absent on the date of hearing. Stress was made on the word 'shall' in Section 256(1) and it was argued that in the absence of the complainant and his counsel, the Magistrate had no other alternative but to acquit the accused.
5. Section 256 of the Code of Criminal Procedure, 1974 (New Code) corresponds to Section 247 of the Code of 1898 (Old Code). The proviso to the section has undergone changes in recent years. The Law Commission had occasion to consider the scope of the section and the proviso when it recommended changes. The report of the Commission reads:
Section 247 seemingly requires the presence of the complainant in a complaint case at every hearing, and prior to the amendment of the Code in 1955, the rule was that if the complanant absented himself, the accused must be acquitted unless the Magistrate thought it proper to adjourn the hearing. It was evidently felt that this rule was too harsh, and a proviso was added in 1955 saying that 'where the Magistrate is of opinion that the personal attendance of the complainant is not necessary' he may dispense with such attendance. The rigour of the original rule has thus gone, and the whole thing is left to the discretion of the Court which, we assume, is being properly exercised. It has been suggested that if the complainant is a public servant or the complainant is properly represented by a pleader, the case should not be dismissed because of his absence. We have, however, no reason to think that in such situations the court will not be persuaded to dispense with the presence of the complainant, so that the provision of law as it stands and as it is intended to be worked is in our view adequate.
The only change which we suggest in the section is to extend the scope of the proviso so as to empower the Magistrate to proceed with the case where the complainant is represented by his pleader or by the officer conducting the prosecution.
6. Section 247 after its amendment in 1955 was the subject-matter of the decision in Sanitary Inspector v. Iyyavu 1959 Ker LT 1277. On the day to which the case stood adjourned, the complainant, Sanitary Inspector was absent and the accused himself asked for adjournment on the ground that his advocate had not come. The court did not adjourn the case, but acquitted the accused. An appeal was filed against the order of acquittal. Raman Nair, J. (as he then was) upheld the acquittal and observed:
What Section 247 says is that when the complainant is absent the Magistrate shall acquit the accused unless for some reason he thinks it proper to adjourn the case. Acquittal is the rule and adjournment an exception for which there must be some good reason.
7. But a different note has been struck by Anna Ghandy J. in Govindan Nnmbiar v. Chidambareswara 1961 Ker LT 797. In that case also the complainant was absent when the case was taken up and an adjournment was sought on behalf of his advocate. Even though he turned up later on, the court acquitted the accused. In appeal, the learned Judge observed:
Section 247 is evidently intended to prevent dilatory tactics on the part of complainants and consequent harassment to accused persons. Like any other, the power under this section also has to be used judicially and judiciously and not in a manner that makes the remedy worse than the disease. It is not proper to throw out a case in a hasty or thoughtless manner when the complainant has proved his bona fides and shown himself vigilant in prosecuting the accused.
8. Kunhumon v. Kotha 1962 Ker LJ 1065 is another decision by the same learned Judge. Therein also the complainant was late to reach the court on the date of hearing. One of the accused was absent and applications were filed by two of the accused for adjournment of the case. The trial court acquitted the accused availing of the provisions contained in Section 247 Cr. P.C. In appeal by the complainant, the learned Judge remarked:
I must say in this connection that instances are not rare where Magistrates have exhibited a tendency to clutch at the jurisdiction vested in them under Section 247 Cr. P.C. as a short-cut to obtain quick and easy disposals. The temptation offered by the Section is so much that in one case that was brought to my notice an order of acquittal under Section 247 was passed in the very face of the complainant at 11-15 A. M. on the ground that he was not present earlier when the case was first called. Vide Govindan Nambiar v. Chidambareswara Iyer 1961 Ker LT 797. Magistrates will do well to bear in mind that 'despatch is a good thing but to do justice is better'.
9. The rulings in Govindan Nambiar v. Chidambareswara Iyer 1961 Ker LT 797 has been followed by E. K. Moidu, J. in Bhageerathi Ramamani v. Radhamma 1971 Cri. LJ 115 (Ker).
10. Under the section as it now stands three courses are open to the court in a case where the complainant is absent on the date of hearing. The Magistrate may (1) acquit the accused or (2) adjourn the case for a future date or (3) dispense with the attendance of the accused and proceed with the case. Which course is to be followed in a particular case is entirely left to the discretion of the Court, which discretion, however, is expected to be exercised in a judicial manner. While exercising the discretion, the courts should not forget that their very existence is for dispensation of justice, no doubt within the frame-work of the Statutes governing particular cases. But even such Statutes should be availed of with a view to advance justice and not to deny it. A complainant usually approaches the court with a case that he has been wronged by the accused. While maintaining the presumption of the innocence of the accused, the Court should not be harsh towards the complainant. Absence of the complainant on a particular day when the case was called could be for umpteen reasons. It could be because he suddenly fell ill or met with an accident on the way to court or missed the bus and could reach the court only late. It could also be that he wanted to harass the accused, his enemy by dragging him to court successively or it could be that he filed the complaint only for the devilish pleasure of seeing his adversary, an apparently respectable man, arrayed as an accused in the criminal court. It could also be that he was not aware of the responsibility that haowed to the court and of the waste of public time inherent in every adjournment of the case. It goes without saying that in a case where the Advocate and the accused are absent it may not be possible for the Magistrate to know beforehand the reasons for their absence. In such cases he may have to decide the course to be followed taking into account the materials available on record. For ex-ample, in a case where the complainant had been consistently absent on previous occasions and had been negligent in producing witnesses the Court would be justified in drawing an adverse inference from his absence and in acquitting the accused. Even in such cases, it is open to the court to proceed with the case if the presence of the complainant is not required on that day. On the other hand, if in a case where there has been a number of adjournments not at the instance of the complainant but for other reasons and the complainant was present on all the previous hearings, it so happens that the complainant does not turn up on a particular day, the Magistrate should be slow in disposing of the case, In such cases, even though the Magistrate is not bound by the provisions of the Statute to do so, there is nothing wrong in adjourning the case to another date so that he may satisfy himself that the absence of the complainant was not due to lack of diligence. Or if the complainant's presence is not required on the particular day, he may dispense with his attendance and proceed with the case. In all such cases, the Magistrate is expected to take stock of the whole situation before he uses his discretion and decides the course to be followed. He should not view the absence of the complainant as a short-cut for disposal of the case.
11. In the instant case, summons to the accused had not been returned after service on 22-9-1976. The order sheet shows that the case was adjourned to 21-10-1976 for return of summons to the accused. The order sheet reads:
21-10-1976 Complainant absent. Counsel also absent. Accused prays. The accused is acquitted.
Although Section 256 contemplates the presence of the complainant even on the date fixed for the appearance of the accused, since the case had to be adjourn-ed for return of summons, the absence of the complainant on the day need mot necessarily moan that he was not diligent in prosecuting the case. This can be gathered from the fact that the accused himself wanted the case to be adjourned. Under the circumstances, the court could have exercised its discretion conferred by the section itself and adjourned the case.
12. The appellant has explained how he happened to be absent on 21-10-1976. In the light of the explanation, interests of justice require that he should be given an opportunity to proceed with the complaint,
13. The appeal is accordingly allowed. The Chief Judicial Magistrate will take the complaint to file and dispose of it according to law.