Criminal Appeal No. 410 of 1995

9th March, 2012

Petitioner Counsel: Mrs. V. V. THORAT
Respondent Counsel: Mrs. P. H. KANTHARIA, APP, Mr. PRAKASH NAIK

Cases Cited:
Madan Lal Kapoor Vs. Rajiv Thapar, 2007 ALL SCR 2453=(2007) 7 SCC 623 [Para 9]
Bani Singh Vs. State of U.P., (1996) 4 SCC 720 [Para 9]
Parasuram Patel Vs. State of Orissa, (1994) 4 SCC [Para 9]

JUDGMENT

JUDGMENT :- By the present Appeal, the Appellant-Original Complainant in Case No.10/S of 1984 of the 29th Court of Metropolitan Magistrate, Dadar, Bombay, has challenged the order dated 18.06.1993 passed under Section 256 of the Code of Criminal Procedure, dismissing the said case and acquitting Respondent No.2 (original accused no.1) and co-accused in the said case. The said case was initiated against Respondent No.2 and two more accused persons, upon a private complaint preferred by the Appellant against them for commission of offence under Sections 500, 501 and 502 of the Indian Penal Code.

2. Having regard to the controversy involved in the present appeal, it is wholly unnecessary to narrate subject matter in said complaint. Upon the said complaint on 9th March, 1984 learned trial Court was pleased to issue process against Respondent No.2 and two more accused for offences under Section 500,501,502 of the Indian Penal Code. During the course of said proceedings, on 13th December, 1985, the trial Court explained particulars of offence alleged against them in complaint to all said accused. All of them pleaded not guilty to the same and claimed to be tried. On 5th August, 1988 the Original accused no.3- T. T. Pithawala having passed away, the case against him abated. The recording of evidence of the complainant i.e. PW-1 commenced on 18th November, 1988 and the same having remained incomplete, was continued on 2nd December, 1988. On the said date after recording of the examination-in-chief of the complainant was over, the matter was required to be adjourned to 6th January, 1989 in view of request made on behalf of the accused and consent to same given by the complainant. The same was required to be adjourned again on the said date to 10th February, 1989 due to the absence of complainant and even thereafter on many dates until 14th May, 1993, either on the count of either of the party or both the parties being not present.

3. Ultimately, on 18th June, 1993 the trial Court observed that the appellant/complainant and her advocate were absent and they were not attending the Court since 22nd January, 1993 and as such she was not interested in prosecution of the accused. The trial Court dismissed the said complaint for non-appearance of the complainant and acquitted both the accused in the said case.

4. The appellant thereafter preferred an application for Special Leave to appeal under Section 378(4) of the Code of Criminal Procedure and the same was granted on 21st July, 1995 and the appeal was admitted. It will not be out of place to state that though by the said order, both the accused were acquitted by the trial Court, the appellant had sought special leave to prefer the appeal only against the present Respondent No.2.

5. Mrs. V. V. Thorat, learned counsel appearing for the Appellant at the hearing of this appeal pointed out to the Court that the complainant has filed the complaint in the year 1984. It is submitted that she is now 88 years old and as such is not in a position to proceed with a case instituted by her, due to the old age and sickness. She submitted, in view of the same, the complainant is not pressing the present appeal and as such appropriate orders permitting withdrawal of same or otherwise may be passed.

6. Mr. Naik, learned counsel for Respondent No.2 thereon rightly submitted that present appeal being admitted by the Court and as there exist no provision for withdrawal of the criminal appeal, once the same is admitted, the present appeal can neither be permitted to be withdrawn nor the same can be dismissed for default due to being not pressed. By drawing attention to the provisions of Section 251 to 259 of the Code of Criminal Procedure, the learned counsel further urged that the complaint in question being entertained for the offence punishable up till two years, it was necessary for the trial Court to follow the procedure prescribed under the said sections for trial of the summons cases by the Magistrate. He further urged that as per provisions of Section 256, after issuing a summons upon the complaint, either on the day appointed for appearance of the accused, or any day subsequent thereto to which hearing is adjourned, in the event of non appearance of the complainant, the Magistrate, is required to acquit accused unless for some reason the Magistrate thinks that it was proper to adjourn the hearing of the case to some other day.

7. Learned counsel further urged that recording of examination-in-chief of the complainant was over way back on 2nd December, 1988 and thereafter, the matter was required to be adjourned for the cross examination of the complainant on number of occasions, it cannot be said that the trial Court could have dispensed with the attendance of the complainant on the said date. It was urged that on the said date, not only the complainant but her advocate was also absent and no reason was informed to the Court for their absence and particularly that of the complainant, and further more said absence being for any cause beyond the control of the complainant. Learned counsel urged that the proceedings before the trial Court do reveal that the complainant was not absent only on the said date, but was continuously absent since 22nd January, 1993. He urged that in view of the same, the trial Court has no option, but to dismiss the said complaint and acquit the accused. He urged hence no fault can be found with such order passed by trial Court. He thus contended that appeal being without any merit be dismissed.

8. Learned APP also supported said submissions of learned counsel for Respondent No.2.

9. After careful perusal of the record, there appears all substance in the submissions canvassed by the learned counsel for Respondent No.2. He has rightly submitted that criminal appeal either against the order of acquittal or order of conviction once admitted, cannot be dismissed for default. The same is apparent as the decision of the Apex Court in the case of Madan Lal Kapoor V. Rajiv Thapar (2007) 7 SCC 623 : [2007 ALL SCR 2453] reveals such position wherein after relying upon and reiterating the law pronounced in the earlier decisions of Apex Court in case of Bani Singh V. State of U.P. (1996) 4 SCC 720 and in case of Parasuram Patel V. State of Orissa (1994) 4 SCC the Apex Court was pleased to observed in paragraphs 4 to 7 as under:

"4. The matter relates to administration of criminal justice. As held by this Court, a criminal matter cannot be dismissed for default and it must be decided on merits. Only on that ground the appeal deserves to be allowed.

5. Thus in Bani Singh v. State of U.P., a three-Judge Bench of this Court held that a criminal appeal should not be dismissed in default but should be decided on merits. If despite notice neither the appellant nor his counsel is present, the court should decide the appeal on merits. If the appellant is in jail the court can appoint a lawyer at State expense to assist it. This would equally apply to the respondent.

6. In Bani Singh v. State of U.P. the Supreme Court overruled its earlier decision in Ram Naresh Yadav v. State of Bihar in which it was held that a criminal appeal can be dismissed for default.

7. In Parasuram Patel v. State of Orissa the Supreme Court held that a criminal appeal cannot be dismissed for default."

10. Learned counsel for the appellant was also not able to point out any provision permitting the appellant to withdraw the same for the reasons advanced or otherwise.

11. On the aforesaid backdrop considering the submission made by learned counsel for respondent no.2 regarding the events occurred in the said case, the same are found in well conformity with the record of said case. Having regard to same and having regard to provisions of section 256 of Criminal Procedure Code it is apparent that in said circumstances the trial Court was left with no other option but to dismiss the said case. Needless to add that the complainant or his advocate having not bothered to inform any reason to the trial Court regarding reason behind absence of the complainant on the said date and much less same being for any reason beyond control of the complainant the trial Court has absolutely no reason to adjourn the said case. In view of the same it is difficult to find any fault with order of dismissal of the said case ordered by the trial Court and consequent order of acquittal passed regarding respondent no.2 and the co-accused. Thus, no case is made out for interfering with the judgment and order of acquittal against which appeal is preferred. This appeal sans merit deserves to be and accordingly stands dismissed.

Ordered accordingly