Shijeesh v. Shaji Jose and State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **TUESDAY, THE 20TH DAY OF OCTOBER 2020 / 28TH ASWINA, 1942** ## **CRL.A.No.245 OF 2016** **AGAINST JUDGMENT IN CC 127/2012 OF CHIEF JUDICIAL MAGISTRATE ,THRISSUR** ## **APPELLANT/COMPLAINANT:** **SHIJEESH AGED 37 YEARS S/O.KARAPPAN, THERVEETIL HOUSE, CHANGALAYI DESOM, VADOOR, MULLASSERRY VILLAGE CHAVAKKAD TALUK, THRISSUR** **BY ADVS. SRI.MANU TOM SRI.K.R.JITHIN SHRI.BALAMURALI K.P. SHRI.SHAJI T.M.** ## **RESPONDENTS/ACCUSED & STATE:** **1 SHAJI JOSE SUB INSPECTOR OF POLICE, WEST POLICE STATION, THRISSUR 2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM R1 BY ADV. SRI.K.K.DHEERENDRAKRISHNAN R1 BY ADV. SRI.D.FEROZE R1 BY ADV. SRI.S.RAJEEV R1 BY ADV. SRI.V.VINAY OTHER PRESENT:** **PP.SRI.E.C.BINEESH** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20.10.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **2** **CRL.A.No.245 OF 2016** **CR** ## **JUDGMENT** This appeal is against the order of acquittal under Section 256 (1) Cr.P.C.. 2. The order of the learned Chief Judicial Magistrate, Thrissur is extracted below for reference:- “Complainant absent. Accused present. Sureties present. Bail granted to accused on his executing bond for Rs.10,000/- with two solvent sureties. Complainant absent on the day when the accused was to appear. There is no representation also from the side of complainant. The name of accused and his counsel called in the open court. As complainant is absent on a day posted for the appearance of accused, accused is acquitted under Section 256 (1) Cr.P.C.” 3. The salutary principle embodied under the various provisions of the Code was not properly understood by the learned Chief Judicial Magistrate, but passed an order of acquittal mechanically, even without going into the various aspects of Sec.256 Cr.P.C., which is extracted below for reference: **3** **CRL.A.No.245 OF 2016** ## “ **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. (2) The provisions of sub-section (1) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death.” (emphasis supplied) 4. A large amount of discretion is vested with the Magistrate under Section 256(1) Cr.P.C. to adjourn the hearing on a future date, instead of acquitting the accused under Section 256(1)Cr.P.C.. The incorporation **4** **CRL.A.No.245 OF 2016** of the proviso to Section 256(1)Cr.P.C. makes it mandatory that the Magistrate shall address the proviso before embark upon the main provision to acquit the accused. The proviso attached to Section 256(1)Cr.P.C. should be read and understood as the integral part of the main section. If the Magistrate is of the opinion that the personal attendance of the complainant is not necessary and the case can be proceeded despite his absence, he can pass an order dispensing with his attendance under the proviso and it can be exercised even without any application. Hence while exercising the jurisdiction under Section 256(1) Cr.P.C., there should not be any conflict with the right conferred under the proviso with the main provision. This would cast a duty on the court to satisfy itself with respect to the existence of any ground to dispense with the personal appearance of the complainant under the proviso, before acquitting the accused under the main provision, Section 256(1) Cr.P.C. ## 5. The Apex Court in **Associated Cement Co.Ltd. v.** **Kesavanand ( 1998 Cr.L.J. 856)** had noticed that the Section imposes two constraints on the Court for the **CRL.A.No.245 OF 2016** **5** exercise of power for dismissing the complaint, firstly, if the court thinks in a situation it is proper to adjourn the hearing, then the Magistrate shall not acquit the accused and secondly, when the Magistrate considers that the personal attendance of the complainant is not necessary on that day, the Magistrate has the power to dispense with the personal attendance of the complainant and proceed further with the matter. 6. This Court had the occasion to deal with a similar situation in **Johnson v. State of Kerala ( 2005(1) KLT 57)** and laid down the legal position in the following lines: “The proviso to Section 256 Cr.P.C. gives a judicial discretion to the Magistrate to form an opinion about the necessity of the personal attendance of the complainant, in a given situation and then to proceed with the case with an adjournment, or to acquit the accused. In the case at hand, the Magistrate did not record, in the impugned order, his opinion about the necessity of the appearance of the complainant on the date of posting. The Court straight away proceeded on the same day itself, dismissing the complaint and acquitting the accused....................... **6** **CRL.A.No.245 OF 2016** A mechanical passing of an order, without judicial application of mind would cause unbearable hardships to the complainant, particularly in a situation like the one under discussion in this case. Therefore, resorting to Section 256(1) Cr.P.C. must be with the required judicial caution.” 7. Thus, the court is statutorily obliged to consider the benefit under the proviso that whether the personal attendance of the complainant is essential on that day for proceeding further in the matter and whether it is not justifiable to adjourn the case to another day for “hearing”. The failure to address the benefit conferred under the proviso before ordering acquittal under the main provision, Section 256(1)Cr.P.C., would be so dangerous and would take away the very purpose behind the provision. Needless to say that if it is unnecessary to insist appearance of the complainant on that day or at that stage, resorting into the extreme step of axing down the complaint by acquitting the accused would be highly adventurous and may take away even the salutary principles governing criminal law. 8. Further, the expression “hearing” incorporated **7** **CRL.A.No.245 OF 2016** in Section 256(1) Cr.P.C. must be understood in relation to the mandate under Sections 251 to 254 Cr.P.C.. The scheme of Chapter XX of the Code shows that the stage where Section 256(1)Cr.P.C. can be invoked will come into play only on completion of requirement under Section 251 to 254 Cr.P.C.. When in a summons case, the accused appears or is brought before the Magistrate, the particulars of offence of which he is accused shall be stated to him so as to enable him either to plead guilty or to raise his defence. The expression 'hearing' not defined anywhere in the Code, but very much clear from the wordings used in Section 254 Cr.P.C., which is extracted below for reference: ## “ **254.Procedure when not convicted.-** (1) If the Magistrate does not convict the accused under section 252 or section 253, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution, and also to hear the accused and take all such evidence as he produces in his defense. (2) The Magistrate may, if he thinks fit, on the application of the prosecution or the accused, issue a summons to any witness directing him to attend or to produce any document or other thing. **8** **CRL.A.No.245 OF 2016** (3) The Magistrate may, before summoning any witness on such application, require that the reasonable expenses of the witness incurred in attending for the purposes of the trial be deposited in Court.” (emphasis supplied) 9. There may not be any dispute that Section 254 Cr.P.C. would come into play only when there is no conviction under Sections 252 or 253 Cr.P.C.. Then only the Magistrate can proceed to hear the prosecution by virtue of Section 254 Cr.P.C.. Hence the expression “hearing” incorporated under Section 256(1)Cr.P.C. must be understood in relation to the expression incorporated under Section 254 Cr.P.C. that “the Magistrate shall proceed to hear the prosecution” which would come into play when there is no conviction on the plea of guilty. The user of the word “shall” make it mandatory that when there is no conviction based on plea of guilty, the Magistrate is bound to proceed to hear the prosecution. In other words, the question of hearing of prosecution would commence only when there is no conviction based on plea of guilty either under Section 252 or 253 Cr.P.C. and the Magistrate can insist the presence of the complainant or the **9** **CRL.A.No.245 OF 2016** prosecution only from that stage i.e. Section 254 Cr.P.C. onwards. The underlying principle is that without the compliance of requirement under Sections 252 or 253 Cr.P.C., there cannot be any “hearing” as mandated under Section 254 Cr.P.C. Hence, the expression “the day appointed for the appearance of accused or any day subsequent thereto, to which the hearing may be adjourned” engrafted under Section 256(1) Cr.P.C. must be understood as the day fixed by the Magistrate to proceed with hearing of prosecution after the compliance of requirement under Section 252 or 253 Cr.P.C. In short, to exhaust the power under Section 256(1) Cr.P.C., the day fixed for appearance of the accused or hearing should be the one appointed in that behalf after the compliance of requirement under Section 252 or 253 Cr.P.C. and not earlier. The liability of the complainant to appear before the Magistrate would arise only on the said day and not earlier. The said requirement would act as yet another constraint on the Court in exercising the jurisdiction under Section 256(1)Cr.P.C. to acquit the accused. 10. In the instant case, a day was fixed for the **10** **CRL.A.No.245 OF 2016** appearance of accused and on that day the accused entered appearance with sureties and enlarged on bail. On the very same day, by noticing the absence of the complainant, the accused was acquitted under Section 256(1) Cr.P.C., without the compliance of the proviso and before attaining the stage in which it can be exhausted. Hence the impugned order is liable to be set aside. I do so. The matter is remanded back to the trial court to proceed in accordance with law. The accused and the complainant shall appear before the trial court on 24.11.2020. 11. Registry is directed to forward a copy of the impugned order and a copy of this judgment to the Directorate of Training for proper guidance while imparting training. Crl.Appeal is allowed in part accordingly. ## **Sd/-** ## **P.SOMARAJAN** ## **JUDGE** sv