IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD SATURDAY, THE TWENTYNINETH DAY OF OCTOBER TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Criminal Appeal No.311 of 2008 Between: Pragada Arjuna Rao .. Appellant AND Singamsetty Durga Kumar and another .. Respondents JUDGMENT: The Criminal Appeal is directed against the dismissal of C.C.No.317 of 2007 on the file of the Judicial First Class Magistrate, Alamuru on 08-01-2008 due to default of the complainant in absenting himself before the Court and in there being no representation for him when the matter was called. The complainant desires the said order of dismissal to be reversed in this appeal claiming that after the complaint was already taken on file, his physical presence was not required on the date of dismissal of the complaint. The appellant claimed that the matter was not called on the Bench during the morning session on that day creating an impression in the mind of the counsel for the appellant about the matter being likely to be posted to the next day. The learned Magistrate himself was on leave on the earlier occasion when the appellant was noted to have been absent and hence, the appellant desired his case to be restored to file. Heard Sri N. Siva Reddy, learned counsel for the appellant and Sri Ch. Dhanamjaya, learned counsel for the 1st respondent and Sri Rudresh Deshpande, learned counsel representing the learned Public Prosecutor/2nd respondent. The point for consideration is whether the order of dismissal of the case needs to be reversed in the interests of justice? Before proceeding to determine the request of the appellant on merits, a reference need be made to the decision reported in G. Basawaraj v. State of Andhra Pradesh and another[1], wherein the learned Judge had considered the impact of the amendment to Section 372 of the Code of Criminal Procedure by the Amending Act of 2008 vis-à-vis Section 378 (4) of the Code of Criminal Procedure. Referring to the precedents on principles governing interpretation of a statutory provision under such circumstances, the learned Judge concluded that the victim, who is also the complainant, can choose one of the two remedies available in law and approach an Appellate Court of his choice depending on the trial Court, which recorded the order of acquittal. The learned Judge opined the amendment to Section 372 to be intended to supplement the then existing remedies and to confer appellate jurisdiction to the Sessions Court also apart from High Court against an order of acquittal recorded by the trial Court. In the light of this view that both the provisions can be given effect to simultaneously without any inconsistency, the maintainability of the appeal itself, which is doubted by the learned counsel for the 1st respondent, need not require any further probe. Coming to the facts of the case, it is seen from the copy of the docket proceedings that the case was taken on file after perusing the sworn statement of the complainant and other material papers on 16-11-2007 and the matter was posted for issuance of summons to the accused for appearance on the date of hearing 26-12-2007. It is true that the complainant was absent and accused was present on 26-12-2007. But, given the procedure prescribed for trial of such cases by the Code of Criminal Procedure, on the appearance of the accused, the next step that the trial Court could have ordered or taken recourse to was to furnish the copies of documents to the accused and examine him under Section 251 of the Code of Criminal Procedure on which occasion the physical presence of the complainant would not have been necessary. The matter was adjourned to 08-01-2008 and the endorsement obviously by the office of the trial Court noting the word “copies” on that date was to signify the need to supply copies of documents to the accused and proceed further in the matter with the examination of the accused etc. However, on 08-01-2008, the trial Court straight away noted the presence of the accused and the absence of the complainant and due to the absence of representation on the previous adjournment, it found no reason to adjourn the matter and dismissed the complaint for default. Given the stage of the case, resorting to the extreme step of dismissal of the case for default appears to be not called for. Though an order of acquittal under Section 256 of the Code of Criminal Procedure cannot be set aside merely because it would cause hardship to the complainant, the claim herein is that the case was not in fact called on the bench during the morning session on the day of dismissal, leading the counsel for the complainant to believe in the probability of the matter being called on the next day. Hence, the case appears to be one where there is reason to think it proper to adjourn the hearing of the case to some other day and hence, the impugned order needs to be reversed. However, the default of the complainant due to non- appearance on two dates of hearing is apparent and admitted and the inconvenience caused to the Court and the accused should be directed to be compensated by appropriate terms, and therefore, the complainant shall deposit an amount of Rs.500/- (Rupees five hundred only) to the credit of Mandal Legal Services Committee, Ramachandrapuram, East Godavari District on or before 28-11- 2011 on which the impugned order dismissing C.C.No.317 of 2007 on the file of Judicial First Class Magistrate, Alamuru will be set aside and C.C.No.317 of 2007 will be restored to file for being determined on merits in accordance with law. In default of such deposit, the impugned order shall stand confirmed. The Criminal Appeal is ordered accordingly. _____________________ G. BHAVANI PRASAD, J Date: 29-10-2011 Note: Issue C.C. by 5-11-2011 B.O./Ksn [1] 2011 (1) ALD (Crl.) 201 (AP)