P.V. JOSEPH v. NONE

C.R. K. HEMA, J. ------------------------------------------------- Crl.Appeal No.485 of 2007 -------------------------------------------------Dated this the 3rd September, 2010J U D G M E N TWhat is the procedure to be followed in a summons case,when the accused appears in court and pleads not guilty? Canthe court straight away post the case for “evidence” or, is itnecessary for the court to post the case for “hearing”, afterrecording plea of not guilty? Can the court acquit the accused,under Section 256(1) of the Code of Criminal Procedure ('theCode' for short), if evidence is already adduced in part or on theday to which, the case is posted for “evidence”? These are someof the important questions which arise for consideration in thisappeal.2. The appellant is the complainant. He filed a complaintagainst the 2ndrespondent herein, on 3.3.2005, alleging offenceunder Section 138 of the Negotiable Instruments Act. Theaccused entered appearance and he pleaded not guilty. The casewas thereafter, adjourned to different dates and, ultimately it was [Crl.A.485/2007]2posted for evidence from 13.07.2006 onwards. But, thecomplainant was absent on one such posting on 28.07.2006. Thecase was then adjourned to 01.09.2006, with a specific directionto the complainant to be present. The complainant did notappear on 01.09.2006 also. Hence, the court acquitted theaccused under section 256(1) of the Code. The said order isunder challenge in this appeal. 3. Notice was issued to the respondents. The 1st respondentis the State. The 2nd respondent is the accused. He acceptednotice but, did not appear in person nor did he enter appearancethrough counsel. Hence, learned counsel for appellant and learnedPublic Prosecutor were heard. 4. According to learned counsel for appellant, the complainantwas present in court on the date on which, the accused wasacquitted. By mistake, his counsel omitted to represent the case,when the case was called. The court also failed to notice thepresence of the complainant. The complainant was diligentlyprosecuting the case and he had filed proof affidavit, in lieu ofchief-examination on the previous day of acquittal and hence, thetrial court ought to have adjourned the case to some other dayfor evidence, it is submitted. [Crl.A.485/2007]35. On hearing both sides and on going through the records, Ifind it essential to read Section 256 of the Code. Before that, therelevant portion from the impugned order can be extracted ashereunder:"Having taken cognizance of the offenceunder/s.138 of the N.I. Act the case wasposted for evidence to 13.7.06. But on13.7.06 the complainant was not ready forevidence and the case was adjourned to28.7.2006. On 28.7.2006 also complainantremained absent. Hence the case was againadjourned to 1.9.06 with a specific directionto produce the complainant and get ready forevidence. But today (1.9.06) also thecomplainant is absent and there is norepresentation also on his behalf." 6. The above extract reveals that the accused in this casewas acquitted, since the complainant did not get ready forevidence. Despite specific direction issued to complainant toadduce evidence, he remained absent and there was not evenany representation on his behalf. The records also reveal that thecomplainant had filed affidavit in lieu of chief examination andadduced evidence in part and the case was adjourned for“evidence” to the date on which the accused was acquitted. Canthe court invoke Section 256 of the Code to acquit the accused ina case in which evidence is adduced in part and adjourned for“evidence”? Section 256 of the Code reads as follows: [Crl.A.485/2007]4"256. Non-appearance or death ofcomplainant:(1)If the summons has been issued oncomplaint, and on the day appointed for theappearance of the accused, or any daysubsequent thereto to which the hearing maybe adjourned, the complainant does notappear, the Magistrate shall notwithstandinganything herein before contained, acquit theaccused, unless for some reason he thinks itproper to adjourn the hearing of the case tosome other day:Provided that where the complainant isrepresented by a pleader or by the officerconducting the prosecution or where theMagistrate is of opinion that the personalattendance of the complainant is notnecessary, the Magistrate may dispense withhis attendance and proceed with the case.(2)The provisions of sub-section (1)shall, so far as may be , apply also to caseswhere the non-appearance of the complainantis due to his death.7. A plain reading of section 256(1) of the Code reveals thatits language is clear, simple and unambiguous. When thelanguage of a provision is clear, simple and unambiguous, thecourt has to go by its plain language. In such case, the question ofinterpretation of the provision does not even arise, since thelegislative intention will be explicit from the language itself. Onthe principles of interpretation of Statutes, the Supreme Courtheld in Shivram A. Shiroor v. Radhabai Shantram Kowshik,(1984) 1 SCC 588, as follows: [Crl.A.485/2007]5“ The task of all interpreters is to ascertain intention. It is often said, where the words of astatute are clear and unambiguous, there canarise no question of construction. Such wordsordinarily speak for themselves. Since the wordsmust have spoken as clearly to legislators as toJudges, it may be safely presumed that theLegislature intended what the words plainly say.This is the true basis of the so-called golden ruleof construction that “Where the language of anAct is clear and explicit, we must give effect to it,for in that case the words of the statute speakthe intention of the Legislature”. 8. While interpreting a provision of a Statute, if thelanguage of the provision is clear, the court shall not add orinsert any expression in the provision. Any addition or alterationmay bring about a total change in the very nature of theprovision itself and, it may even go against the legislativeintention. It is likely that it may even defeat the purpose forwhich the provision is brought into the Statute and result in fatalconsequences, which the legislature itself would not haveintended. 9. Therefore, whatever is stated in the provision is to bestrictly followed, without adding to or deleting any word fromthe provision. The court's job is only to give effect to the plainlanguage of the provision, as such without effecting any alterationto the provision to suit its convenience, especially when the [Crl.A.485/2007]6language is clear and unambiguous. 10. A three-judge-bench of the Supreme Court held inAssessing Authority-cum-Excise and Taxation Officer v.East India Cotton Mfg. Co. Ltd., (1981) 3 SCC 531 thus:“Now it is a well-settled rule ofinterpretation that a statute must beconstrued according to its plain languageand neither should anything be added norsubtracted unless there are adequategrounds to justify the inference that thelegislature clearly so intended”.11. Keeping in mind, the well-settled principles ofinterpretation of Statutes and on a plain reading of theprovisions contained in Chapter XX and specially, Section 256 ofthe Code, it is clear that the accused can be acquitted undersection 256(1), only on either of the two days specified in the saidprovision, viz., i) the day appointed for “appearance” of theaccused, if summons has been issued or ii) any day subsequentthereto, to which the “hearing” may be adjourned. 12. But, the accused in this case was acquitted not on theday to which the case was posted for “appearance” of accused orfor “hearing”. The acquittal order was passed on the day to whichthe case was posted for “evidence”. An argument is raised at thebar that once the accused appears and pleads not guilty, the case [Crl.A.485/2007]7is ordinarily posted for “evidence” and there is no necessity topost the case for “hearing'. Therefore, there is nothing wrong inacquitting the accused, if the complainant fails to adduceevidence, despite giving direction to adduce evidence. 13. It is also argued that if the accused can be acquittedunder section 256, at the fag end of the trial on the day of“hearing”, nothing will prevent the court to acquit the accused ata previous stage, on the day of posting for “evidence”, it iscontended. I cannot accept the above argument for variousreasons. On a close reading of the relevant provisions of theCode, it is clear that the day of “hearing” referred to in Section256 does not fall at the fag end of the trial. It comes at the earlystage of trial. 14. The trial in summons cases commences on appearanceof accused. Section 251 of the Code lays down that when theaccused appears on summons or is brought before the trial court,the accused shall be asked whether he pleads guilty to theoffence (of which the particulars are stated to him) or has anydefence to make. If the accused pleads not guilty, the courtshall adjourn the case “to hear the prosecution”, undersection 254(1) of the Code. [Crl.A.485/2007]815. Thus, even on a plain reading of section 251 to 256 ofthe Code, it is clear that after recording plea of not guilty, thecase shall be adjourned to “hear” the prosecution. Therefore,“any day subsequent thereto which the hearing may beadjourned” referred to in section 256(1) of the code is the dayimmediately succeeding the day appointed for appearance of theaccused and after recording plea of not guilty. The expression,“subsequent thereto” in Section 256(1) of the Code is relevant.“Any day subsequent thereto, to which the hearing may beadjourned” referred to in Section 256(1) has reference to the dayappointed for “appearance” of the accused. Such day of”hearing” is the day falling in between the day fixed forappearance of accused (and recording of plea) and the day towhich the case is posted for “evidence” under Section 254(1).16. Section 254(1) of the Code mandates that (if theaccused pleads not guilty), the court “shall” adjourn the case tohear the prosecution. The word used in section 254(1) is “shall”and the procedure is mandatory. When the legislature lays downa particular procedure under the Code, it is intended to befollowed and, it shall strictly be followed. Hence, after recordingthe plea of not guilty in summons cases, trial courts shall, without [Crl.A.485/2007]9fail, post the case for hearing and it shall not, instead, straightaway post the case for evidence. 17. Any practice followed by the courts, contrary to themandatory provision of the Code, for whatever length of time willnot gain legal sanction. Such illegal procedure will notcrystallise into law. What is relevant is not, what practice isfollowed by the courts, but what procedure the courts are boundto follow under the Code. A procedure in the Code which ismandatory in nature shall not be skipped or ignored by the courts,without even ascertaining whether there is any purpose in layingdown such procedure in the Code. 18. It appears from a reading of relevant provisions inChapter XX of the Code that there is a purpose for hearing theprosecution at the early stage of the case. As per Section 251 ofthe Code, when the accused appears or is brought before theMagistrate in a summons case, the particulars of the offence shallbe stated to him, and he shall be asked whether he pleads guiltyor has any defence to make. Even if the court does notspecifically ask him whether the accused “has any defence tomake”, it is left to the accused to make his defence at this stage. [Crl.A.485/2007]10 19. If the accused puts forward his defence before the courtthat the allegations in the complaint do not constitute any offenceor that there is no sufficient ground to proceed against him forsome or other reason like, want of sanction or because of amistake in the address shown in the summons etc., and if itappears to the court that there are no sufficient grounds toproceed against the accused, principles of natural justicedemands that the opposite party shall be heard. That is whythe legislature has laid down in Section 254(1) of the Code thatthe court shall “hear” the prosecution. 20. If the court adjourns the case for hearing the prosecutionand on that day if the complainant is absent, Section 256(1)permits the court to acquit the accused. However, even if thecomplainant is absent and if the court still thinks it proper toadjourn the hearing of the case to some other day, it mayadjourn the hearing, instead of acquitting the accused. But, if thecourt is satisfied that the trial will be a futile exercise, and it willonly amount to abuse of process of court, there will be nojustification in dragging on the proceedings, in the absence of thecomplainant. So, if the court finds no proper reason to adjourn [Crl.A.485/2007]11the case for hearing, it shall acquit the accused under Section 256(1) of the Code. 21. If the Magistrates alertedly follow the procedure inChapter XX of the Code, and ask the accused whether he “hasany defence to make” as stated in Section 251, and he makes avalid defence that there are no sufficient ground to proceedagainst him, in appropriate cases, complainant himself willunderstand the futility of a trial and he may drop out. He mayeven withdraw the case or remain absent. In such event, theproceedings in an appropriate case can be terminated, at theearly stage of the trial itself in accordance with law by invokingSection 256(1) of the Code. 22.Thus, it is clear that an order of acquittal under Section256(1) is not mechanical, though the only ground available foracquitting accused under the said provision is absence ofcomplainant. The Court has to apply its mind to the facts andcircumstances before acquitting the accused under Section 256(1) on the ground of non-appearance of the complainant. Ofcourse, I do not mean to say that a detailed order is to be passedby the courts under Section 256 of the Code, which revealingapplication of mind, because a judicial form is prescribed for [Crl.A.485/2007]12passing an order under Section 256 of the Code under theCriminal Rules of Practice ('the Rules' for short). Form no.11 inAppendix-1 of the Rules is the judicial Form prescribed forpassing order under Section 256 of the Code and Rule 6 of theRules lays down that the “Forms prescribed by these rules shallbe used for the respective purposes herein mentioned, with suchvariations as the particular circumstances of the case mayrequire”. 23. But, once the court is satisfied on hearing the defenceof the accused or on its own evaluation or assessment of therelevant facts and circumstances that there are no grounds toproceed against accused and the complainant is absent on eitherof the two days specifically stated in Section 256(1) of theCode, the Court “shall” acquit the accused unless the court thinksit proper to adjourn the case for hearing. This course adopted bythe Court will only ensure delivery of justice to the deservingparty and that must be the reason why the expression, “shall ” isused in Section 256(1). 24. But, what is ordinarily done by the Magistrate courts isto acquit the accused mechanically, without application of mind tothe object of the provisions contained in sections 251 to 256 of [Crl.A.485/2007]13the Code. The order of acquittal is passed under section 256(1)of the Code, without even ascertaining whether the day on whichthe order of acquittal passed is the day referred to in section 256(1) of the Code. The Magistrate Courts acquit the accused evenat the fag end of the case, giving untenable reasons, such as it isa long-pending case and it is included in the target; thecomplainant is not adducing evidence despite repeateddirections; the case is posted as last chance for evidence; thepresence of accused cannot be procured despite coercive stepstaken etc., etc. Those are no reasons at all to acquit the accusedunder Section 256(1) of the Code. 25. I have come across with cases in which the courtsacquit the accused under section 256(1) of the Code, even ifcomplainant is present on the ground that the complainant hadnot adduced evidence etc. Such orders of acquittal which arepurportedly passed under Section 256(1) are clearly illegal. Suchorders are passed without understanding the scope of section256(1) of the Code and also the importance of the other relevantprovisions in the Code. The net result is, flow of appeals intothis Court against orders of acquittals under section 256(1) of theCode, a vast majority of which, are set aside and remanded. [Crl.A.485/2007]14 26. By the time, the case is finally disposed of on meritby the trial court, more than a decade might be over andbecause of the delay, the parties suffer, and the very system ofadministration of justice fails. The courts, therefore, must be verycautious while acquitting the accused under section 256(1) of theCode, especially since the mere reason for acquittal is non-appearance of complainant. It shall adhere to the provision inSection 256 of the Code strictly and it shall act only in accordancewith the language of the provision. The court shall acquit theaccused under Section 256(1) of the Code, only on either of thetwo days, specifically stated in the said section. Any order ofacquittal passed on any day other than the day specified inSection 256(1) of the Code will be illegal and without jurisdiction. 27. There is nothing in Section 256(1) of the Code to showthat the accused can be acquitted on 'any day to which the caseis posted for evidence'. The legislature does not seem to haveintended that the accused shall be acquitted under section 256(1) of the Code on the day of posting of the case for “evidence”.Had there been any such intention, Section 256(1) would havecontained some expression to indicate this. But, there is nothingin Section 256(1) of the Code even to imply that the accused can [Crl.A.485/2007]15be acquitted on the day to which the case is posted for“evidence”. 28. It follows therefore, that in a case in which the evidenceis taken in part or in full, under section 254(1) of the Code, thecourt shall not acquit the accused under section 256(1) of theCode. In cases in which evidence is recorded in part or full, theMagistrate Courts shall follow only the procedure in section255(1) of the Code (vide also Radhamany amma v. Kunju Pillai1980 KLT 393). An order of acquittal passed under section 256(1) of the Code, in a case in which the evidence is adduced in partis illegal. 29. Now coming to the facts of this case, I find thatcomplainant filed affidavit in lieu of chief examination andevidence was adduced in part, under Section 254(1) of the Code.That means, the court has gone ahead the stage of “hearing” andposted the case for further “evidence”. Hence, the court oughtnot to have acquitted the accused under section 256(1) of theCode, since the court has no power to acquit the accused underthe said section, on the day to which the case was posted forevidence. [Crl.A.485/2007]16 30. In this context, I am of view that the Magistrateshave to be alerted on the need to ask the accused in summonscases whether he “has any defence to make” under section 251of the Code. Though such a course is open, it is not seen adoptedby the Courts. If there is proper application of mind and theprocedure under the Code is followed, the court may be able toidentify several cases which need not go for trial. Many frivolouscomplaints can be wiped off, at the early stage of the trialitself. 31. If the accused is asked about his defence as stated inSection 251 of the Code and if prosecution is heard as stated inSection 254(1) of the Code, the complainant himself may besatisfied of the futility of pursuing the litigation and he mayeither withdraw the case or may remain absent. This would put astop to many meritless proceedings which may otherwise bedragged on unnecessarily for years, without there being anypurpose to either side. The valuable time of the court spent onsuch litigations could also be utilised for some other fruitfulpurpose. Hence, in summons cases, the Magistrate courtsshall strictly follow the procedure contained in the Code, whichare stated below: [Crl.A.485/2007]17i) On appearance of the accused under Section 251 of theCode, the court shall state the particulars of theoffence to the accused (and the records must clearlyindicate what were such particulars read out toaccused, though a formal charge need not be framed).ii) The accused shall then, be asked whether he pleadsguilty or has any defence to make. (Even if thecourt does not ask the accused, whether he has anydefence to make, the accused will be at liberty tomake his defence at this stage).iii) If the accused makes his defence or/and pleads notguilty, the court shall, without fail, post the case tohear the prosecution, as stated in Section 254(1) of theCode and hear the prosecution.iv) Further adjournments for hearing shall not be grantedas a matter of routine, but the court may adjourn thecase for hearing, only if it thinks it proper to do so, onapplication of mind.v) If there is no proper reason to adjourn the case forhearing, and the court does not acquit the accusedunder Section 256(1) of the Code, it shall post thecase for evidence as stated in Section 254(1). vi) Once the case is posted for evidence under Section254(1) of the Code, under no circumstance, the courtshall acquit the accused under Section 256(1) of theCode. [Crl.A.485/2007]1832. Summing up my discussion, I hold that the impugnedorder passed under section 256(1) of the Code is unsustainable.Hence, the following order is passed:1) The order under challenge is set aside. 2) The trial court shall take the case on file, andproceed with the same, in accordance with law.3) The parties shall report before the trial court on 22.11.2010.4) Registry shall forward a copy of this judgment to allthe Magistrate Courts in the State This appeal is allowed.Sd/- K.HEMA, JUDGEma/krs.