JUDGMENT
Nesargi, J.
1. It is noted that typing charges of Rs. 11.90 P, are to be deposited Miss S. Pramila, learned Advocate for the appellant submitted that she undertakes to deposit the typing charges by the evening of tomorrow i.e. 8th July, 1980.
2. This appeal, by special leave, is directed against the order of acquittal dated 21-8-1978 passed by the Chief Judicial Magistrate, Raichur, in C.C. No. 98 of 1978, under Section 256 of the Code of Criminal Procedure, 1973 (to be hereinafter referred to as the new Code).
3. The facts, so far as they are necessary for this decision, may be stated as follows :
4. The appellant filed a complaint under Section 200 of the new Code alleging that the respondent had committed offences punishable under Sections 114 and 117 of the Karnataka Agriculture Produce Marketing (Regulation) Act, 1966, as the respondents were trading in paddy and rice and were engaged in processing of paddy into rice in the market area in question without taking a licence under Section 8 of the said Act, and that the respondents had not paid market-fees for the years 1974-75 and 1975-76 in regard to the amounts mentioned in the complaint.
5. On 21-8-1978 the Chief Judicial Magistrate noted as follows (relevant portion only) in the order-sheet :
“Accused No. 1 is present in person. Accused No. 2 is not present. His counsel is present. He applies for exemption. Heard, Exemption for the day is granted. Complainant called out, absent. His counsel is also not present.
Counsel for the accused submits that in law either the complainant or his counsel will have to be present before the Court in the present case. He further submits that on account of the absence of both the complainant and his counsel and in the absence of special reasons, the complaint will have to be dismissed. For orders by 4.30 p.m. today.”
At 4.40 p.m., the same day, the impugned order was passed and it as follows :
“The Karnataka Agricultural Produce marketing (Regulation) Act, 1976, was obtained and perused its provisions with reference to offences alleged by complainant. All the offences alleged in the complaint are to be tried as summons case. Hence for the absence of the complainant and also when there are no valid reasons for adjourning the hearing of the case, the accused are acquitted under Section 256(1), Cr.P.C. 1973”.
6. Section 256(12) of the new Code reads as follows :
“256. Non-appearance of 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.”
The ingredients of Section 256(1) (not the proviso) of the new Code are, as follows :
(a) summons must have been issued on complaint;
(b) The Magistrate should be of opinion that for some reason it is not proper to adjourn the hearing of the case to some other day; and
(c) the date on which the order under Section 256(1) can be passed is the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing of the case has been adjourned.
7. In our opinion, the proviso would be applicable under the following circumstances :
(a) the complainant is represented by a pleader; or
(b) the complainant is represented by the officer conducting the prosecution; or
(c) the Magistrate is of opinion that the personal attendance of the complainant is not necessary.
What the Magistrate can do if the proviso applies is that he may, in his discretion, dispense with the attendance of the complainant and proceed with the case.
8. In the decision in Ranga Setty v. Kunna Setty, (1960) 38 Mys LJ 1033, Section 247 of the Code of Criminal Procedure, 1898 (to be hereinafter referred to as the old Code) to which Section 256 of the new Code is equivalent, was considered. It was laid down that the discretion whether to adjourn or not under Section 247 of the old Code has to be exercised with great care and caution, and that the compulsion to acquit arises only after the Magistrate has exercised his discretion and come to the conclusion that there are no valid grounds for adjourning the case. It is plain that the proviso to the said section was not gone into, and the principle laid down is on analysing the ingredients of Section 247 (main) of the old Code. In the decision in Provident Fund Inspector, Mangalore v. A. J. Coelho, (1972) 1 Mys LJ 147 : (1974 Cri LJ 68), the very provision was considered. The principle applied is to be gathered from the following :
“From the orders of the learned Magistrate, it is clear that adjourning the cases suo motu did not arise before him at all. The ratio of the decision referred to above is not applicable to the facts of the cases on hand. If the complainant is absent when the case is called out and when no reason is shown to the Court for the absence of the complaint naturally the Court would presume that the complaint is absent because he does not wish to go on with the case, and accordingly an order of acquittal is made whatever the nature of the case may be. In these cases, the date of hearing was fixed on 24-6 1971, for hearing. It was the duty of the complainant to have been present on that date. His absence clearly brings these cases within the ambit of Section 247 of the Cr.P.C. and the orders of acquittal passed by the learned Magistrate are justified.”
(Note : the case referred to is Ranga Setty v. Kunna Setty, (1960) 38 Mys LJ 1033).
There is another Division Bench decision of this Court in which Section 247 of the old Code has been gone into; State of Mysore v. Hameed, 1972 (2) Mys LJ 102. It is held therein that in a proper case for good reasons, the case can be adjourned even though the complainant is absent, and if there are good reasons for his absence, and that before proceeding to pass any order under Section 247 of the old Code, it is one of the legitimate duties of the Court to apply its mind and see whether there are good grounds or not to act one way or the other. The facts of this case show that the case had been instituted on filing of a charge-sheet by the police. In that view of the matter, Section 247 of the old Code was not applicable. We agree with the principle laid down. But, we do not approve of the application of Section 247 of the old Code to the facts and circumstances of the case. To the same effect what we have now observed, is the view expressed by the Division Bench of this Court in the decision in State of Mysore v. A. Kamalakasha, ILR (1974) Kant 1149. In that case, offence alleged was under Section 337 of the Indian Penal Code, and the charge-sheet was filed by the police. The Division Bench held that Section 247 of the old Code was not applicable.
9. The learned counsel for the appellant relied on the decision in C. K. Sivaraman Achari v. D. K. Agarwall, 1978 Cri LJ 1376 (Ker). this judgment is rendered by a single Judge, Kumari P. Janaki Amma. The scope of Section 256 of the new Code has been gone into. It has been held that under this provision the Magistrate may (1) acquit the accused, or (2) adjourn the case for a future date, or (3) dispense with the attendance of the complainant and proceed with the case. It has also been observed to the following effect :
“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. While maintaining the presumption of the innocence of the accused, The Court should not be harsh towards the complaint. The reasons for absence of the complainant can be numerous including sometimes beyond his control or sometimes frivolous. 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.”
Lastly, it has been observed that the Magistrate should not view the absence of the complainant as a short-cut for disposal of the case.
10. We approve of the principles enunciated in C. K. Sivaraman Achari’s case. The examination of the ingredients of Section 256 of the new Code as a whole i.e. including the proviso, makes it abundantly clear that while passing an order of acquittal under Section 256(1) (main provision) of the new Code, the Court has to bear in mind the ingredients of the proviso to it also. The main provision applies when the case is posted to a date appointed for the appearance of the accused or any day subsequent thereto which the case may be adjourned for hearing. Even then the Magistrate has to, on exercising his discretion, record that there is no good reason for which it would be proper to adjourn the hearing of the case to some other day. We will now proceed to consider whether on the facts available in this case, the main provision in Section 256(1) of the new Code was rightly applied by the Chief Judicial Magistrate.
11. The records maintained by the trial Court show from the order-sheet that on 12-6-1978 itself Sri G. Ramanna, Advocate, filed power on behalf of both the accused-respondent, and the case was ultimately adjourned for recording of plea on 4-7-1978. When the case was called on 4-7-1978, exemption was prayed for accused-1 and the same was granted for the day. Accused-2 was absent and, hence, the Magistrate directed issue of non-bailable warrant, returnable by 22-7-1978. This shows that the Magistrate was of opinion that presence of accused-2 was necessary for recording plea. On 22-7-1978 the non-bailable warrant was returned executed on accused-2. An application was filed praying for cancellation of the non-bailable warrant against accused-2. That was granted. Exemption from appearance was prayed on behalf of accused-1 and the same was granted for the day. The case was adjourned to 21-8-1978. What happened on 21-8-1978 has already been narrated by us. In vies of the order passed on 12-6-1978, it will have to be held that the case was adjourned to 4-7-1978 for recording the plea of the accused, but the plea could not be recorded as accused-2 was absent and Court thought it fit to issue non-bailable warrant against accused-2 and adjourn the case to 22-71978 for the return of the non-bailable warrant. Though it is not specifically recorded or noted that adjournment to 22-7-1978 was for recording the plea also, it must be deemed to be so because of the order on 12-6-1978. Hence, it follows that adjournment to 21-8-1978 was also for recording the plea of the accused. Though recording of the plea of the accused may be considered as part of the process of hearing of the case, a Magistrate is at liberty to split up the process of hearing as recording of plea and recording of evidence. Therefore 21-8-1978 cannot be regarded as a dated fixed for hearing of the case. Hence, the main provision in Section 256(1) of the new Code was not at all applicable to the facts and circumstances of the case, and as such the Chief Judicial Magistrate was not right in applying the said provision and holding that because of the absence of the complainant and because there was no valid reason for adjourning the case, the accused were entitled to be acquitted, and passing the order of acquittal.
12. In the result, the order in question cannot be sustained in law, and hence, we allow the appeal and set aside the order dated 21-8-1978 passed by the Chief Judicial Magistrate, Raichur, in C.C. No. 98 of 1978. We direct the Chief Judicial Magistrate to take the case on the file in its original number on receipt of the records from this Court and dispose of the case according to law, from the stage at which it stood on 21-8-1978, after notifying the parties concerned.
13. Appeal allowed.