case of S. 138 NI act has been dismissed due to non filing of pf. U/s. 204(4) CRPC
Is there any remedy for it.
suryagaurav (manager) 27 June 2011
case of S. 138 NI act has been dismissed due to non filing of pf. U/s. 204(4) CRPC
Is there any remedy for it.
dev kapoor (Honorary Secretary) 27 June 2011
You can file Rrvision against the order dismissing complsaint i.e. declining to take cognizance or for quashing the order u/s 482 Cr.P.C.But if you elaborate you qn,it can be better understood & accordingly replied.
venkatesh Rao (Retired Government Servant) 26 January 2012
Pl. apply for revision under sec.397 cr.p.c. before the sessions court and convince the reasons for non payment in time.
dev kapoor (Honorary Secretary) 26 January 2012
See if this judgment is of any help.You still hv the right to file Revision or Quash order u/s.482.The SC Judgment is as under:
AIR 1971 SUPREME COURT 1925 "Cricket Association of Bengal v. State of W.B."
(V 58 C 398)
Coram : 2 C. A. VAIDIALINGAM AND A. N. RAY, JJ.
Criminal Appeal No. 270 of 1968, D/- 24 -3 -1971.
Cricket Association of Bengal and others, Appellants v. The State of W.B. and others, Respondents.
(A) Criminal P.C. (5 of 1898), S.248 - COMPLAINT - DISCHARGE - High Court finding prosecution for warrant case offence misconceived and directing magistrate to try accused for offene tribal as summons case. Magistrate has jurisdiction to permit withdrawal of complaint and to discharge accused
CR.- Criminal P.C. (5 of 1898), S.253(2).
Where the High Court after giving a clear finding that on the allegations in the complaint the case initiated before the magistrate as a warrant case is misconceived, directs the magistrate to investigate whether the accused had not committed a different
offence triable as a summons case the magistrate has jurisdiction under Section 248 to permit the withdrawal of the complaint and acquit the accused as the case ceases to be a warrant case and becomes one to which summons case procedure applies. (Para 15)
Even if it is assumed that as there was no express order quashing the proceedings initiated as a warrant case the warrant case procedure would continue to apply to the case the magistrate would have jurisdiction to discharge the accused under S. 253 (2). (Paras 14and 15)
(B) Criminal P.C. (5 of 1898), S.439 - HIGH COURT - In proper cases High Court can suo motu interfere with orders of subordinate Courts. (Para 16)
M/s. C. K. Daphtary and Nalin Chandra Banerjee, Sr. Advocates, (M/s. D. N. Mukherjee and Mukulgopal Mukherjee, Advocates, with them), for Appellants.
The Judgment of the Court was delivered by
* Cri. Revn. No. 475 of 1967, D/-17-1-1968 - Cal.
VAIDIALINGAM, J. :- This appeal, by special leave, is directed against the judgment and order dated 14/17 June, 1968 of the Calcutta High Court in Criminal Revision No. 475 of 1967 reversing the orders passed by the Court of the Chief Presidency Magistrate, Calcutta, discharging the accused-appellants.
2.The circumstances leading up to the order of the High Court may be indicated. The second respondent filed a complaint on January 3, 1967 before the Court of the Chief Presidency Magistrate, Calcutta in respect of the incident which took place on the second day (January 1, 1967) of the Second Cricket Test Match between India and West Indies at the Eden Gardens. The Test Match was to be played under the control, management and supervision of the Cricket Association of Bengal, which had sold tickets of various denominations for the game. There were tickets sold for all the days of the Match and there were arrangements made for the sale of daily tickets. The game started as scheduled on December 31, 1966. The play was interrupted by a number of spectators scaling over the fencing erected around the play-ground and entering the cricket field. However, nothing untoward happened on that day.
3. According to the prosecution, the first appellant started selling tickets announcing that arrangements had been made for the accommodation of about 60,000 spectators, while as a matter of fact nearly a lakh of spectators were admitted into the enclosure. The sitting arrangement was most inconvenient and highly unsatisfactory. The arrangements made by the first appellant for accommodating the persons inside the enclosure were so grossly inadequate that it tended to endanger the personal safety of the spectators. On the day in question, the complainant, who was a holder of a season ticket for Rs. 45/- went to attend the game and found all the stands jampacked. Notwithstanding this the people with tickets were being pushed into different enclosures with the result that the spectators within the enclosures started jumping over the fence and occupied the space between the lines of the field and the fencing. The police, unable to control the rush and confusion caused by the behaviour of the crowd, suddenly started a lathi-charge followed by the bursting of tear gas shells, which resulted in causing injuries to various persons. This infuriated the crowd, which retaliated by acts of arson. The arrangements for going out of the enclosures were also grossly inadequate with the result that some of the spectators who wanted to clear out quickly in panic sustained injuries. The Match had to be abandoned for the day. On these facts the complainant alleged that the first appellant had acted most rashly and negligently in over-selling the tickets and admitting a large number of people than could be conveniently accommodated inside the ground and thereby endangered human lives and the personal safety of thousands of spectators. It was further alleged that as a matter of fact the rash and negligent act of the first appellant also resulted in hurt being caused to a number of persons, who had come to witness the Match. Apart from the Cricket Association of Bengal, which was the first accused, he made 33 persons accused in his complaint petition. Those persons were the President, the Vice-President and other office-bearers and Members of the Working Committee of the Cricket Association of Bengal. The complainant prayed for issuing summons
against the 34 accused persons under Sections 337 and 338 read with S. 114 of the Indian Penal Code and to proceed against them according to law .
4. On January 3, 1967 the Chief Presidency Magistrate examined the complainant and heard his counsel. As the Chief Presidency Magistrate was prima facie satisfied there was a case, he issued summons to the persons shown as accused under Sections 337 and 338 read with S. 114 of the Indian Penal Code, fixing February 13, 1967 for appearance. The complainant had also made a prayer for issue of search warrants and for seizure of the account books and other relevant papers in the custody of the first accused appellant and search warrants were issued on January 6, 1967.
5. Some of the office-bearers of the first appellant on receipt of summons challenged before the High Court in Criminal Revision No. 19 of 1967 the orders of the Chief Presidency Magistrate issuing summons and search warrants. They also prayed for quashing the complaint on the ground that the allegations even if fully established will not establish an offence under Section 337 and/or Section 338 read with Section 114 or any other Section of the Indian Penal Code, and that the complaint was misconceived and constitutes an abuse of the process of the Court.
6. The learned Single Judge stayed further proceedings before the Chief Presidency Magistrate and issued summons to the State and the complainant. After hearing all parties, the learned Single Judge ultimately, by his order dated February 24, 1967, dismissed the Criminal Revision No. 19 of 1967. There were three points to be noted in the order of the learned Judge, namely, (1) Mr. Dutt. counsel appearing for the complainant conceded before the High Court that the process issued by the Chief Presidency Magistrate under Sections 337 and 338 read with Section 114 of the Indian Penal Code is misconceived, (2) the High Court has given a finding that the statements made in the petition of complaint do not constitute the essential elements to make out offences under Sections 337 and 338 I. P. C., and (3) nevertheless, prima facie it cannot be stated that the elements of an offence under Section 336 I. P. C. are not contained in the complaint, and therefore the prosecution will have to be given a chance to establish, if they can, that an offence under Section 336 I. P. C. has been committed. Though ultimately the criminal revision was dismissed, it will be seen from the aspects mentioned above that the complainant has conceded that the allegations in the complaint will not make out an offence under Ss. 337 and 338 I. P. C. Apart from this concession, the learned Single Judge after independently considering the averments in the complaint has also held that no offence under Ss. 337 and 338 is disclosed in the complaint and that the issue of summons in respect of those offences cannot be upheld. But the High Court was prepared to give an opportunity to the prosecution to establish, if they can, that an offence under S. 336 I. P. C. at any rate, has been committed by the accused. It is needless to state that the Chief Presidency Magistrate was bound to have due regard to these directions contained in the order of the High Court when the case was to be proceeded with again in his court.
7. After the disposal of Criminal Revision No. 19 of 1967 by the High Court on February 24, 1967 and in consequence of the stay of proceedings being vacated, the Chief Presidency Magistrate proceeded to deal further with the complaint. On March 2, 1967 the complainant filed an application before the Chief Presidency Magistrate for leave to withdraw the complaint against eight accused, namely, accused Nos. 8, 10, 11, 22, 26, 31, 32 and 33. The reason given by the complainant was that the said accused persons had ceased to act as members of the Working Committee at the material time. On March 20, 1967 the Chief Presidency Magistrate discharged, under S. 253 (2) Cr. P. C. the eight accused as prayed for by the complainant in his application dated March 2, 1967, after accepting the reasons given therein. The accused so discharged were Nos. 8, 10, 11, 22, 26, 31, 32 and 33. On May 31, 1967, the complainant filed another application before the Chief Presidency Magistrate seeking permission to withdraw the complaint against the rest of the accused. In that application he stated that he had filed the complaint to voice the grievances of the bona fide spectators, who had purchased tickets for witnessing the Cricket Test Match. He had further mentioned that an Inquiry Commission called the "Sen Commission" was already inquiring into the events connected with the incident that took place on January 2, 1967 in order to find out the persons responsible for the same. Under those circumstances, the complainant stated that he does not intend to continue the complaint instituted by him.
8. On June 8, 1967, the Chief Presidency Magistrate dismissed the complaint as against accused Nos. 16, 17, 18, 19, 23, 27, 30 and 34 under S. 204 (3) Cr. P. C. on the ground that the complainant has not deposited the necessary charges for issue of summons. It was noted by the Chief Presidency Magistrate that the complainant though called was absent. Dealing with the application dated May 31, 1967 filed by the complainant for permission to withdraw the complaint, the Chief Presidency Magistrate has stated that he cannot accord permission to withdraw the complaint as the proceedings under Section 338 I. P. C. are warrant procedure proceedings. But the Chief Presidency Magistrate has further stated that no useful purpose will be served by proceeding further with the complaint as the complainant was not present and was also not serious to proceed with the complaint as is evident from his conduct in committing several defaults. For these reasons the Chief Presidency Magistrate passed an order discharging all the other remaining accused under Section 253 (2) Cr. P. C. Therefore, it will be seen that by the two orders dated March 20, and June 8, 1967, referred to above, the Chief Presidency Magistrate discharged all the accused and terminated the proceedings initiated by the second respondent.
9. The news regarding the termination of these proceedings appeared in some of the Dailies in Calcutta on June10,1967. On seeing the said news item, the High Court by its order dated June 13, 1967 called for the record pertaining to the case from the Court of the Chief Presidency Magistrate, Calcutta. On August 1, 1967 a Division Bench of the Calcutta High Court issued suo moto a Rule (Criminal Revision No. 475 of 1967) to the complainant and the 34 accused persons to show cause why the orders discharging the accused persons passed on March 20, and June 8, 1967 should not be set aside.
10. The learned Judges after hearing all the parties, by the impugned judgment set aside the two orders of the Chief Presidency Magistrate discharging the accused. The Chief Presidency Magistrate was directed to proceed with the complaint and dispose it of according to law. But the learned Judges directed that the proceedings need be continued only against the 14 accused, namely, Nos. 1, 2, 3,4, 5, 6 7 9 10 12 13 14 15 and 26. The learned Judges have held that the discharge of some of the accused under S. 204 (3) Cr. P. C. on June 8, 1967 on the ground that the complainant has not paid the process for issue of summons is not proper. According to the High Court there is no provision under the relevant rules framed by the High Court for payment of any process for issue of summons in respect of cognizable offences whether the case is instituted on a complaint or not. Similarly the High Court held that the orders discharging under S. 253 (2) Cr. P. C. some of the accused on March 20, 1967 and the remaining accused on June 8, 1967 are also not justified as the proceeding under S. 338 I. P. C. was that of a warrant case.
11. Mr. C. K Daphtary, learned counsel for the appellants, in attacking the order of the High Court has pointed out that there was no justification for the High Court to interfere suo motu with the orders passed by the Chief Presidency Magistrate discharging the accused, in the circumstances mentioned by him. The counsel also pointed out that the Division Bench has not properly appreciated and given effect to the directions given in the judgment of the learned Single Judge in Criminal Revision No. 19 of 1967. After the order of the learned Single Judge, the counsel pointed out, that the proceedings have to be continued by the Magistrate only to inquire if an offence under S. 336 I. .P. C. has been made out, in such a trial the summons case procedure has to be adopted and the Magistrate has got ample jurisdiction to permit the complainant under
section 248 Cr. P.C. to withdraw the complaint. Even on the basis that the charges under Ss. 337 and 338 survive and the warrant case procedure is to be adopted, the Magistrate has jurisdiction under S. 253 (2) to discharge the accused. Considering the matter from any point of view, the interference by the High Court is not justified.
12. Neither the State nor the complainant has appeared before us to support the order of the High Court. We have already referred in great detail to the circumstances under which the impugned order was passed as they give a clear and complete picture of the whole matter. We have gone through the reasoning of the learned Judges and we are satisfied that the interference with the orders of the Chief Presidency Magistrate by the High Court was not justified and was not warranted in the circumstances of the case.
13. The fundamental error committed by the Division Bench is that it has proceeded on the basis the the learned Single Judge on the former occasion in Criminal Revision No. 19 of 1967 has not held that the prosecution under Ss. 337 and 338 is not made out. We have already referred to the fact that during the hearing of Criminal Revision No. 19 of 1967, Mr. Dutt, learned counsel appearing for the complainant conceded that the issue of process under Ss. 337 and 338 I. P. C, was misconceived. On the other hand, the Division Bench proceeds on the basis that no such concession has been made, which is erroneous as a fact. Again even apart from the concession, the learned Single Judge after discussing the essential ingredients of an offence under Sections 337 and 338 I. P. C. has categorically held in his order that the statements made in the complaint petition do not go to make up the essential ingredients for an offence under Ss. 337 and 338. The learned Single Judge has also found that it is not possible at that stage to say that no offence even under S. 336 I. P. C. has been committed. It is on this reasoning that the learned Judge though technically did not quash the proceedings, gave a clear indication that the prosecution is given a chance to establish, if they can, that the accused have committed an offence under S. 336 I. P. C. After the concession of the counsel for the complainant and the categorical finding of the learned Judge that no offence under Ss. 337 and 338 L P. C. is made out and that an investigation is to be made only in respect of an offence under S. 336 I. P. C., it is idle to expect the Magistrate to ignore these clear directions and proceed with the trial again for an offence under Ss. 337 and 338 I. P. C., as if nothing has happened. That is exactly what unfortunately the Division Bench has done. It has ignored the concession of the counsel. It has ignored the clear finding of the learned Single Judge as also the directions given by him. It is this serious mistake committed by the Division Bench that has resulted in the passing of the order under attack. The legality of the orders passed by the Chief Presidency Magistrate can be considered from two points of view. Assuming that the Chief Presidency Magistrate has still to proceed with the trial for offences under Ss. 337 and 338, I. P. C. it is no doubt true that he has to follow the warrant case procedure. Even under such circumstances, the Magistrate has got ample jurisdiction to discharge the accused under Section 253 (2) Cr. P. C. Section 253 deals with the discharge of accused. Sub-section (1) deals with the discharge of an accused when the Magistrate after taking all evidence referred to in Section 252 Cr. P. C. and making such examination of the accused, if any, as may be found necessary, finds that no case against the accused has been made out, which if unrebuted, would warrant his conviction. Sub-section (2) of Section 253 is to the following effect:
"253 (2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless."
This sub-section gives ample jurisdiction to the Magistrate to discharge an accused in the circumstances mentioned therein and the order of discharge can be passed at any previous stage of the case. Sub-section (1) under those circumstances will not operate as a bar to the exercise of jurisdiction by the Magistrate under sub-section (2). It
is under sub-section (2) of Section 253 that the Magistrate has discharged the accused. He has given good reasons in the order for discharging the accused.
14. Assuming that the Division Bench is right in holding that the discharge under Section 204 (3), Criminal P. C. is not justified, we will proceed on the basis that the said order is one of discharge under Section 253 (2). We have already referred earlier to the reasons given by the complainant in his application seeking permission to withdraw the complaint, as well as to the reasons given by the Magistrate for discharging the accused. There is no controversy that at the material time, the Sen Commission was inquiring into the identical matter which was the subject of the criminal complaint. Under those circumstances, it cannot be said that the discharge of the accused by the Magistrate is either illegal or not justified.
15. Even on the basis that the inqury has to proceed for an offence under Section 336, I. P. C., the position will be that the summons case procedure will have to be followed. Even then under Section 248, Criminal P. C. the Magistrate has ample jurisdiction to permit the complainant to withdraw the complaint. In fact under Section 248, Criminal P.C. the Magistrate should acquit the accused, once he permits the complaint to be withdrawn. Even if the order of discharge is to be treated as passed in a case where summons case procedure is to be followed, it was within the jurisdiction of the Magistrate and hence it cannot be characterized as either illegal or not justified.
16. We accordingly hold that the Division Bench was not justified in interfering with the orders dated March 20, and June 8, 1967 passed by the Chief Presidency Magistrate, in the circumstances of this case. We, however, make it clear that we have no doubt that in proper cases the High Court can take action suo motu against the orders passed by the subordinate Courts without being moved by any party.
17. In the result the appeal is allowed. The judgment and order of the High Court in Criminal Revision No. 475 of 1967 are set aside and the orders of the Chief Presidency Magistrate dated March 20, and June 8, 1967 will stand restored.
dev kapoor (Honorary Secretary) 26 January 2012
AND if you still fee that on account of the fact the cOmplaint u/s.138 NIA is a "Summons case" & order of Magistrate amounts to Acquitta, I would suggest SC Judgment in Associated Cement Co Ltd Vs. Keshavanand,the next of the jjmnt is as follows:
AIR 1998 SUPREME COURT 596 "Associated Cement Co. Ltd. v. Keshvanand"
= 1998 AIR SCW 192
(From: 1997 Cri LJ 3898 (Jammu and Kashmir))
Coram : 2 M. K. MUKHERJEE AND K. T. THOMAS, JJ.
Criminal Appeal No. 1239 of 1997 (arising out of SLP (Cri.) No. 2377 of 1997), D/- 16 -12 -1997.
Associated Cement Co. Ltd., Appellant v. Keshvanand, Respondent.
Criminal P.C. (2 of 1974), S.256 - DISHONOUR OF CHEQUE - Non-appearance of complainant - Complaint for dishonour of cheque filed by attorney- holder of Company - Provisions of S. 256 is applicable even where complainant is Company or any other juristic person - Discretion as to whether personal attendance of complainant should be dispensed with or not - Has to be exercised judicially.
1997 Cri LJ 3898 (J and K), Reversed.
Complainant must be a corporeal person who is capable of making physical presence in the Court. Its corollary is that even if a complaint is made in the name of an incorporeal person (like a Company or Corporation) it is necessary that a natural person represents such juristic person in the Court and it is that natural person who is looked upon, for all practical purpose to be the complainant in the case. In other words, when the complainant is a body corporate it is the de jure complainant, and it must necessarily associate a human being as de facto complainant to represent the former in Court proceedings. Hence, provisions of S. 256 is applicable even where complainant is Company or any other juristic person.
1997 Cri LJ 3898 (J and K), Reversed. (Paras 24, 27)
Two constraints are imposed on the Court for exercising the power under the S. 256. First is, if the Court thinks that in a situation it is proper to adjourn the hearing then the Magistrate shall not acquit the accused. Second is, when the Magistrate considers that personal attendance of the complainant is not necessary on that day the Magistrate has the power to dispense with his attendance and proceed with the case. When the Court notices that the complainant is absent on a particular day the Court must consider whether personal attendance of the complainant is
essential on that day for the progress of the case and also whether the situation does not justify the case being adjourned to another date due to any other reason. If the situation does not justify the case being adjourned the Court is free to dismiss the complaint and acquit the accused. But if the presence of the complainant on that day was quite unnecessary then resorting to the step of axing down the complaint may not be a proper exercise of the power envisaged in the section. The discretion must, therefore, be exercised judicially and fairly without impairing the cause of administration of criminal justice. (Para 18)
Cases Referred : Chronological Paras
AIR 1970 SC 1 12
AIR 1965 SC 1585 11
Raju Ramachandran, Sr. Advocate, Sudhanshu Tripathi, U.A. Rana, Ms. Arshi Suhail, Advocates with him, for Appellant; M. L. Bhat, Sr. Advocate, (Prakash Padiau), Advocate, for Ms. Purnima Bhat Kak, Advocate with him, for Respondent.
THOMAS, J. :- Leave granted.
2. Appellant-company has been pro-secuting the respondent in the Court of Judicial Magistrate (First Class), Jammu, alleging the offence under S. 138 of the Negotiable Instruments Act, but learned Magistrate acquitted the respondent on 24-8-1996 solely on the ground that the complainant was absent. Appellant-company filed an appeal in challenge of the said order of acquittal before the High Court of Jammu and Kashmir with leave but that appeal was dismissed. This appeal is against the said judgment of the High Court.
3. The complaint was based on a cheque issued by the respondent towards amounts allegedly due from him ranging to a little above eight lacs of rupees. Facts, which are not disputed for the present appeal, show that appellant-company was represented in the trial Court by one Puneet Aggarwal with a power of attorney of the company. Learned Magistrate took cognizance of the offence, and after examining Puneet Aggarwal on oath, issued summons to the respondent pursuant to which he appeared in Court. As the trial proceeded, Puneet Aggarwal and another person were examined as prosecution witnesses and the case was posted for further evidence to 23-8-1996. On that day the complainant was absent and the counsel for the accused pressed for dismissal of the complaint. However, the Magistrate posted the case to the next day, but on that day also the complainant and his counsel were absent. Then the Magistrate recorded the order of acquittal of the accused under S. 247 of the Code of Criminal Procedure, 1898 (which is applicable to the State of Jammu and Kashmir even now. It will hereinafter be referred to as 'the old Code').
4. In the appeal petition filed before the High Court it was stated that Puneet Aggarwal was posted as an officer of the appellant- company at Jammu during the period when the complaint was filed, but subsequently he was transferred to Jallandhar (in Punjab State), the advocate of the complainant (Shri K. S. Johal) faced a misfortune in his family as his brother was involved in a motor accident on 23-8-1996 and was subjected to an operation, and due to such circumstances Shri J. S. Johal could not attend the Court for three days preceding 25-8-1996. It was also mentioned in the appeal petition that the aforesaid Puneet Aggarwal had in fact left Jallandhar for attending the Court at Jammu on 23-8-1996, but he could not reach Jammu as motor traffic on the National Highway became paralysed due to incessant rains which lashed the region continuously for 2 days, and that Puneet Aggarwal never knew that the case was posted to next day and hence his absence on 24-8-1996 was absolutely unintentional.
5. Learned single Judge of the High Court did not take into account any of the above facts and was not persuaded to interfere with the acquittal as he adopted a "grammatical construction" of S. 247 of the old Code in the following words :
"On a grammatical construction of S. 247 the intention of the legislature becomes clear. Non-appearance of the complainant, after summons are issued, according to that intention, may result in acquittal of the accused."
6. On the above premise learned single Judge found that there was no legal error in the order passed by the Magistrate and hence dismissed the appeal.
7. Before we proceed to consider the merits of this appeal we may refer to a strange averment
made by the respondent in the counter-affidavit sworn to by him which he has filed in this court in answer to the special leave petition. After replying to various grounds, the respondent has stated, with reference to paragraph F of the special leave petition the following :
"In reply to sub-para F it is submitted that a false complaint was filed against the Respondent at the behest of one Mr. Kanwar Sein Anand, who is Forwarding and Clearing Agent of the petitioner-company. The said gentleman claims to be a real brother of an Hon'ble sitting Judge of the Supreme Court and is exploiting the name of the Hon'ble Judge without his knowledge."
8. We could not fathom or even grasp the reason for making such a statement in the counter-affidavit. So we asked Shri M. L. Bhat, learned senior counsel (who appeared for the respondent) as to the relevance or the raison d'etre for the said averment. Shri M. L. Bhat then submitted that he too concedes that the said averment is quite irrelevant for this case and offered to withdraw it. Later an application has been filed for deleting that portion from the affidavit. While we allow that application to delete the said portion we cannot but express our displeasure over and disapproval of the conduct in scribbling down such irrelevant and mischievous imputation in an affidavit filed in this Court, particularly the unwholesome attempt to drag in a Judge of this Court. It is sad that when such an unsavoury statement was scribed into an affidavit the idea of deleting it did not occur to him at least when the affidavit was authenticated by the advocate. Indeed, he decided to delete it only when we asked the senior counsel about its relevance. We do not wish to say anything more about it.
9. Learned single Judge of the High Court apprised himself of the widdth of the appellate powers of the High Court as follows, in the impugned judgment :
"In my opinion our law of precedent has developed out of this policy of the statutes. This is how time and again it has been held that Appellate/Revisional Courts should not ordinarily disturb the finding of the trial Courts, if a different view also could be taken on same facts. The Court's concern only will be, as to whether or not the order impugned is fraught with any illegality or impropriety."
10. It appears that learned single Judge has equated appellate powers with revisional powers, and that the core difference between an appeal and a revision has been overlooked. It is trite legal position that appellate jurisdiction is co-extensive with original Court's jurisdiction as for appraisal and appreciation of evidence and reaching findings on facts and appellate Court is free to reach its own conclusion on evidence untrammelled by any finding entered by the trial Court. Revisional powers on the other hand belong to supervisory jurisdiction of a superior court. While exercising revisional powers the Court has to confine to the legality and propriety of the findings and also whether the subordinate Court has kept itself within the bounds of its jurisdiction including the question whether the Court has failed to exercise the jurisdiction vested in it. Though the difference between the two jurisdictions is subtle, it is quite real and has now become well recognised in legal provinces.
11. In State of Kerala v. K. M. Charia Abdullah and Co., AIR 1965 SC 1585, this Court has highlighted the difference between the two jurisdictions in the following words (para 5) :
"There is an essential distinction between an appeal and a revision. The distinction is based on the differences implicit in the said two expressions. An appeal is a continuation of the proceedings; in effect the entire proceedings are before the appellate authority and it has power to review the evidence subject to the statutory limitations prescribed. But in the case of a revision, whatever powers the revisional authority may or may not have, it has not the power to review the evidence unless the statute expressly confers on it that power."
12. In Shankar Ramchandra Abhyankar v. Krishnaji Dattatraya Bapat, AIR 1970 SC 1, this Court has observed that the right of appeal is one of entering a superior Court and invoking its aid and interposition to redress the error of the Court below.
13. In this case when the High Court considered that its only concern was to check whether the order of the Magistrate "is fraught with any illegality or impropriety", the High Court has narrowed down its angle while dealing with an appeal.
14. When a trial Court had acquitted an accused due to non-appearance of the complainant the appellate Court has the same powers as the trial Court to reach a fresh decision as to whether on the particular situation the Magistrate should have acquitted the accused. What the trial Court did not then ascertain and consider could, perhaps, be known to the appellate Court and a decision different from the trial Court can be taken by the appellate Court, whether the order of acquittal should have been passed in the particular situation.
15. Section 247 of the old Code 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 hereinbefore contained, acquit the accused, unless for some reason he thinks proper to adjourn the hearing of the case to some other day :
Provided that 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."
16. Section 256 of the Code of Criminal Procedure, 1973 (for short 'the new Code') is the corresponding provision to S. 247 of the old Code. The main body of both provisions is identically worded, but there is a slight difference between the provisos under the two sections. The proviso to S. 256 of the new Code is reproduced here :
"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."
17. What was the purpose of including a provision like S. 247 in the old Code (or S. 256 in the new Code). It affords some deterrence against dilatory tactics on the part of a complainant who set the law in motion through his complaint. An accused who is per force to attend the Court on all posting days can be put to much harassment by a complainant if he does not turn up to the Court on occasions when his presence is necessary. The Section, therefore, affords a protection to an accused against such tactics of the complainant. But that does not mean if the complainant is absent, Court has a duty to acquit the accused in invitum.
18. Reading the Section in its entirety would reveal that two constraints are imposed on the Court for exercising the power under the Section. First is, if the Court thinks that in a situation it is proper to adjourn the hearing then the Magistrate shall not acquit the accused. Second is, when the Magistrate considers that personal attendance of the complainant is not necessary on that day the Magistrate has the power to dispense with his attendance and proceed with the case. When the Court notices that the complainant is absent on a particular day the Court must consider whether personal attendance of the complainant is essential on that day for the progress of the case and also whether the situation does not justify the case being adjourned to another date due to any other reason. If the situation does not justify the case being adjourned the Court is free to dismiss the complaint and acquit the accused. But if the presence of the complainant on that day was quite unnecessary then resorting to the step of axing down the complaint may not be a proper exercise of the power envisaged in the section. The discretion must, therefore, be exercised judicially and fairly without impairing the cause of administration of criminal justice.
19. When considering the situation of this case as on 24-8-1996, from the facts narrated above, we have no manner of doubt that the Magistrate should not have resorted to the axing process, particularly since the complainant was already examined as a witness in the case besides examining yet another witness for the prosecution.
20. Appellant has adopted an alternative contention that as the complainant in this case is a company which is an incorporeal entity there is no question of the complainant being absent in the Court on any day fixed for hearing and hence S. 247 of the old Code (or S. 256 of the new Code) was inapplicable. Learned single Judge repelled the said alternative contention when it was raised in the High Court.
21. It is true that the complainant M/s. Associated Cement Company Ltd. is not a natural person. We have no doubt that a complaint can be filed in the name of a juristic person because it is also a person in the eye of law. But then, who would be the complainant in the criminal Court for certain practical purposes.
22. The word "complainant" is not defined in the Code of Criminal Procedure, whether old or new. Any person can set the law in motion except in cases where the statute has specifically provided otherwise. The word "person" is defined in the Indian Penal Code (S. 11) as including "any company or association or body of persons whether incorporated or not". By virtue of S. 2(y) of the new Code words and expressions used in that Code but not denied therein can have the same meaning assigned to them in the Penal Code. Thus when the word "person" is specifically defined in the Penal Code as including a company that definition can normally be adopted for understanding the scope of the word "complainant". However, the definition clauses subsumed in S. 2 of the new Code contains the opening key words that such definitions are to be adopted "unless the context otherwise requires". We have, therefore, to ascertain whether a company or association of persons or body corporate can be a complainant as per the new Code as for all practical purposes, looking at different contexts envisaged therein.
23. Chapter XV of the new Code contains provisions for lodging complaints with Magistrates. Section 200 as the starting provision of that chapter enjoins on the Magistrate, who takes cognizance of an offence on a complaint, to examine the complainant on oath. Such examination is mandatory as can be discerned from the words "shall examine on oath the complainant......". The Magistrate is further required to reduce the substance of such examination to writing and it "shall be signed by the complainant". Under S. 203 the Magistrate is to dismiss the complaint if he is of opinion that there is no sufficient ground for proceeding after considering the said statement on oath. Such examination of the complainant on oath can be dispensed with only under two situations, one if the complaint was filed by a public servant, acting or purporting to act in the discharge of his official duties and the other when a Court has made the complaint. Except under the above understandable situations the complainant has to make his physical presence for being examined by the Magistrate. Section 256 or S. 249 of the new Code clothes the Magistrate with jurisdiction to dismiss the complaint when the complainant is absent, which means his physical absence.
24. The above scheme of the new Code makes it clear that complainant must be a corporeal person who is capable of making physical presence in the Court. Its corrollary is that even if a complaint is made in the name of an incorporeal person (like a company or corporation) it is necessary that a natural person represents such juristic person in the Court and it is that natural person who is looked upon, for all practical purposes, to be the complainant in the case. In other words, when the complainant is a body corporate it is the de jure complainant, and it must necessarily associate a human being as de facto complainant to represent the former in Court proceedings.
25. As the corresponding provisions in the old Code are the same for all practical purposes, the legal position discussed above is applicable to the complaint filed under the old Code as well.
26. Be that so, we suggest as a pragmatic proposition that no Magistrate shall insist that the particular person, whose statement was taken on oath at the first instance, alone can continue to represent the company till the end of the proceedings. There may be occasions when a different person can represent the company e.g. the particular person who represents the company at the first instance may either retire from the company's services or may otherwise cease to associate therewith or he would be transferred to a distant place. In such cases it would be practically difficult for the company to continue to make the same person represent the company in the Court. In any such eventuality it is open to the de jure complainant-company to seek permission of the Court for sending any other person to represent the company in the Court. At any rate, (sic)
27. For those reasons we are not persuaded to uphold the contention that S. 247 of the old Code (or S. 256 of the new Code) is not applicable in a case where the complainant is a company or any other juristic person.
28. However, as we have taken the view that the Magistrate should not have acquitted the respondent under S. 247 of the old Code on the facts of this case we allow the appeal and set aside the order of acquittal as well as the impugned judgment of the High Court. The prosecution would now proceed from the stage where it reached before the order of acquittal was passed.
Shonee Kapoor (Legal Evangelist - TRIPAKSHA) 26 January 2012
If there are any genuine reasons only then the case can be re-instated.