CRIMINAL PETITION No.7801 OF 2008

24-11-2011

Veena S.Rajnalkar.

N.Bhargavi Devi and another.

Counsel for the petitioner: Sri V.V.N.Narasimham,

Counsel for 1st respondent: Sri P.V.V.Gopalakrishna Murthy. Counsel for 2nd respondent: Public Prosecutor.

?Cases referred:

1. 2004 (1) ALT (Crl.) 18 (NRC)

2. 2006 CRL. L.J. 601

3. 2003 CRL. L.J.3395

ORDER:

This Criminal Petition is filed by the petitioner seeking to quash the proceedings in C.C.No.985 of 2006 on the file of the learned X Additional Chief Metropolitan Magistrate, Secunderabad by setting aside the orders passed by the learned Metropolitan Sessions Judge, Hyderabad in Crl.R.P.No.148 of 2008.

Petitioner herein is the sole accused and 1st respondent herein is the defacto complainant.

The facts of the case, in brief, is follows:

The 1st respondent herein is the complainant in C.C.No.985 of 2006 on the file of the learned X Additional Chief Metropolitan Magistrate, Secunderabad. The said case was posted for his evidence on 31-7-2008. Neither the 1st respondent nor his counsel appeared before the trial Court on that day. Therefore, the learned Magistrate has dismissed the said complaint on the same day and acquitted the petitioner herein. Challenging the said acquittal, the 1st respondent herein preferred a revision before the learned Metropolitan Sessions Judge, Hyderabad in Crl.R.P.No.148 of 2008. The learned Sessions Judge vide his orders dated 15-10-2008 in Cr.R.P.No.148 of 2008 allowed the said revision. Challenging the same, the petitioner herein who is the sole accused preferred this petition.

Sri V.V.N.Narasimham, learned counsel representing Sri V.Venugopala Rao, learned counsel on record appearing for the petitioner submits that when the complaint is dismissed under Section 256 Cr.P.C., for non appearance of the complainant, the Magistrate shall acquit the accused unless for some reason he thinks fit to adjourn the matter to some other date and in view of the word used 'acquittal', revision is barred under Section 401 Cr.P.C. and the only remedy available to the 1st respondent was to prefer an appeal under Section 378 Cr.P.C. and since no revision is maintainable, the impugned order is liable to be set aside. Hence, this Criminal Petition is to be allowed.

None appears for the 1st respondent.

Heard the learned Public Prosecutor.

The short question that arises for consideration is whether an appeal or a revision lies even an accused is acquitted under Section 256 Cr.PC. Section 256 Cr.P.C. reads as follows:

"(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 herein before 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." Admittedly, the learned Magistrate has not adjourned the hearing of the case to some other date or dispense with the attendance of the complainant. Admittedly, complaint was dismissed acquitting the petitioner herein under Section 256 (1) Cr.P.C.

Sub-Section (1) of Section 401 Cr.P.C. reads as follows: "In the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by Sections 386, 389, 390 and 391 or a Court of Sessions by Section 307 and, when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by Section 392." Subsection 3 of Section 401 Cr.P.C. reads as follows: "Nothing in this section shall be deemed to authorize a High Court to convert a finding of acquittal into one of conviction." Sub-Section 4 of Section 401 Cr.P.C. reads as follows: "Where under this code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed."

Thus it is clear that where an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed.

Subsection 5 of Section 401 Cr.P.C. reads as follows: "Where under this Code an appeal lies but an application for revision has been made to the High Court by any person and the High Court is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do, the High Court may treat the application for revision as a petition of appeal and deal with the same accordingly."

In the provision of Section 378 Cr.P.C., the procedure to be followed for filing an appeal in cases of acquittal has been provided. Sub-Section 4 of Section 378 Cr.P.C. reads as follows: "If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court." Thus, it is clear that where an order of acquittal is passed in any case instituted upon complaint,, the complainant after seeking special leave to appeal from an order of acquittal may present such an appeal to the High Court. Thus, it is clear that the procedure prescribed under sub-section 4 of 378 Cr.P.C. is to be followed when complaint has been dismissed under Section 256 (1) Cr.P.C.

Sri V.V.N.Narasimham, learned counsel representing Sri V.Venugopala Rao, learned counsel on record appearing for the petitioner relies on the Judgment of this Court reported in H.P.FINANCIAL CORPORATION v. M/S. CONTINENTAL SPINNERS LIMITED AND OITHERS (1) wherein the learned single Judge of this Court while dealing with the complaint filed under Section 138 of the Negotiable Instruments Act, 1881 which was dismissed observed that the dismissal of the complaint has the effect of acquittal, therefore, in view of the provisions of Sub-Section 4 of Section 378 of the Code, the remedy of the complainant is to make an application seeking special leave to appeal against the impugned order of dismissing the complaint.

A further reliance is also placed by the learned counsel for the petitioner on the Judgment of Bombay High Court reported in OM GAYATRI & COMPANY v. STATE OF MAHARASHTRA (2) wherein it was observed that Section 256 (1) which mandates that if the absence of the complainant is not justified, the Magistrate shall acquit the accused and once an order of acquittal has been passed, the remedy of the complainant is to prefer an appeal under Section 378 of the Code of Criminal Procedure after obtaining leave of the Court as required by Section 378 (4) of Cr.P.C.

A further reliance is also placed by the learned counsel for the petitioner on the Judgment Delhi High Court reported in KALPANA TYAGI v. SNEH LATA SHARMA (3) wherein the learned single Judge had taken the similar view. It appears that the petitioner did not appear before the learned Sessions Judge and therefore, the learned Sessions had no occasion to deal with all these provisions since maintainability of revision was not questioned before him. Any how, the legal position is clear. Since under Section 256 Cr.P.C., for non- absence of the complainant, the Magistrate shall acquit the accused, revision is barred under Sub-Section 4 of Section 401 Cr.P.C. The only remedy available to the complainant is to seek the leave of the Court under Sub-Section 4 of Section 378 Cr.P.C. and to file an appeal under Section 378 Cr.P.C. In view of the same, it is clear that no revision is maintainable as preferred by the 1st respondent herein before the Sessions Court. Accordingly, the impugned order is set aside and consequently, the order of the learned Magistrate stands restored.

Accordingly, this Criminal Petition is allowed.

However, it is made clear that it is left open to the complainant to avail any remedy subject to the provisions of law.