IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD WEDNESDAY, THE SECOND DAY OF DECEMBER TWO THOUSAND AND NINE HON’BLE SRI JUSTICE G. BHAVANI PRASAD Criminal Appeal No.796 of 2005 Between: The Food Inspector, Div-II, Nizamabad District rep. by the Public Prosecutor, High Court of A.P., Hyderabad .. Appellant AND Chatervedi Seshu and another .. Respondents/ Accused Appeal against the order in S.T.C. No.6 of 2004 on the file of the Special Mobile Magistrate, Guntur, dated 19-08-2004 praying to set aside the order of acquittal and to convict the accused for the offence with which they were charged. The appeal coming on for hearing, upon perusing the grounds filed in support thereof and upon hearing the arguments of the Public Prosecutor for the appellant, the Court made the following: JUDGMENT: The dismissal of S.T.C. No.6 of 2004 on the file of the Special Mobile Magistrate, Guntur by order, dated 19-08-2004 under Section 256 of the Code of Criminal Procedure, led the complainant to file the present appeal through the learned Public Prosecutor. The appellant claimed to have inspected the premises of the accused on 31-05-2002 and taken samples of chilli power, which, on analysis by the Public Analyst, was found to be adulterated. The appellant, therefore, claims that he filed the complaint against both the accused after obtaining written consent from the Food Health Authority. The complaint dated 26-03-2004 was filed into Court only on 02-04-2004 and was taken on file on 05-04-2004 directing issuance of summons to the accused by the date of first hearing on 10-05-2004. The appellant was endorsed by the Court to have been absent on all dates of hearing since 17-05-2004, to which date the case was posted for examination of the accused, after copies were furnished on their appearance on 10-05-2004. The case was posted for trial on 22-06-2004, 09-07-2004, 20-07-2004, 05-08-2004 and 19-08-2004. Even assuming that the personal presence of the appellant might not have been necessary on 17- 05-2004 when the matter was posted for examination of the accused under Section 251 of the Code of Criminal Procedure, on all the five dates of hearing, there appeared to be no representation for the absentee appellant and on 05-08-2004 it was specifically endorsed by the Court that the complainant is directed to appear before the Court on the date of adjournment, otherwise next steps will be taken. It was only on the absence of the appellant again on 19-08-2004, while the accused were present on all dates of hearing, that the trial Court was compelled to dismiss the complaint under Section 256 of the Code of Criminal Procedure. The claim in this appeal is that on 19-08-2004, the complainant appeared in two cases before the Court of VII Munsif Magistrate, Guntur. But there was absolutely no whisper about the reasons for his absence on the other dates of hearing or as to what disabled him from getting it represented on his behalf before the trial Court about his being compelled to appear in some other Court on the same day at same time. The claim of the appellant in the grounds of appeal that there was nothing to be done by the complainant on 19-08-2004, is incorrect, as the matter was coming up for trial and the appellant ought to produce his evidence in support of his complaint. Under the circumstances, the exercise of jurisdiction by the trial Court under Section 256 of the Code of Criminal Procedure cannot be faulted. The judicial discretion not having been shown to have been exercised irregularly or illegally or improperly, interests of justice will be served only if the order of the trial Court were to be upheld but not by reviving the five year old case against the accused at this distance of time. Hence, the appeal is dismissed. _____________________ G. BHAVANI PRASAD, J Date: 02-12-2009 Svv