IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 3RD SEPTEMBER 2010 / 12TH BHADRA 1932 CRL.A.No. 485 of 2007() ----------------------- ST.1194/2005 of JUDL. MAGISTRATE OF FIRST CLASS, CHANGANACHERRY .................... APPELLANT(S): -------------- P.V. JOSEPH, PURACKAL HOUSE, CHANGANACHERRY VILLAGE, PUZHAVATHU, CHANGANACHERRY TALUK. BY ADV. SRI.PHILIP T.VARGHESE RESPONDENT(S): STATE & ACCUSED: ------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. BIJU JOSEPH, PUTHENPARAMPIL, CHETHIPLUZHA VILLAGE, VEROOR MURI, VADAKKEKARA. PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.R. K. HEMA, J. ------------------------------------------------- Crl.Appeal No.485 of 2007 ------------------------------------------------- Dated this the 3rd September, 2010 J U D G M E N T What is the procedure to be followed in a summons case, when the accused appears in court and pleads not guilty? Can the court straight away post the case for “evidence” or, is it necessary for the court to post the case for “hearing”, after recording plea of not guilty? Can the court acquit the accused, under Section 256(1) of the Code of Criminal Procedure ('the Code' for short), if evidence is already adduced in part or on the day to which, the case is posted for “evidence”? These are some of the important questions which arise for consideration in this appeal. 2. The appellant is the complainant. He filed a complaint against the 2ndrespondent herein, on 3.3.2005, alleging offence under Section 138 of the Negotiable Instruments Act. The accused entered appearance and he pleaded not guilty. The case was thereafter, adjourned to different dates and, ultimately it was [Crl.A.485/2007] 2 posted for evidence from 13.07.2006 onwards. But, the complainant was absent on one such posting on 28.07.2006. The case was then adjourned to 01.09.2006, with a specific direction to the complainant to be present. The complainant did not appear on 01.09.2006 also. Hence, the court acquitted the accused under section 256(1) of the Code. The said order is under challenge in this appeal. 3. Notice was issued to the respondents. The 1st respondent is the State. The 2nd respondent is the accused. He accepted notice but, did not appear in person nor did he enter appearance through counsel. Hence, learned counsel for appellant and learned Public Prosecutor were heard. 4. According to learned counsel for appellant, the complainant was present in court on the date on which, the accused was acquitted. By mistake, his counsel omitted to represent the case, when the case was called. The court also failed to notice the presence of the complainant. The complainant was diligently prosecuting the case and he had filed proof affidavit, in lieu of chief-examination on the previous day of acquittal and hence, the trial court ought to have adjourned the case to some other day for evidence, it is submitted. [Crl.A.485/2007] 3 5. On hearing both sides and on going through the records, I find it essential to read Section 256 of the Code. Before that, the relevant portion from the impugned order can be extracted as hereunder: "Having taken cognizance of the offence under/s.138 of the N.I. Act the case was posted for evidence to 13.7.06. But on 13.7.06 the complainant was not ready for evidence and the case was adjourned to 28.7.2006. On 28.7.2006 also complainant remained absent. Hence the case was again adjourned to 1.9.06 with a specific direction to produce the complainant and get ready for evidence. But today (1.9.06) also the complainant is absent and there is no representation also on his behalf." 6. The above extract reveals that the accused in this case was acquitted, since the complainant did not get ready for evidence. Despite specific direction issued to complainant to adduce evidence, he remained absent and there was not even any representation on his behalf. The records also reveal that the complainant had filed affidavit in lieu of chief examination and adduced evidence in part and the case was adjourned for “evidence” to the date on which the accused was acquitted. Can the court invoke Section 256 of the Code to acquit the accused in a 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 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 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. 7. A plain reading of section 256(1) of the Code reveals that its language is clear, simple and unambiguous. When the language of a provision is clear, simple and unambiguous, the court has to go by its plain language. In such case, the question of interpretation of the provision does not even arise, since the legislative intention will be explicit from the language itself. On the principles of interpretation of Statutes, the Supreme Court held 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 a statute are clear and unambiguous, there can arise no question of construction. Such words ordinarily speak for themselves. Since the words must have spoken as clearly to legislators as to Judges, it may be safely presumed that the Legislature intended what the words plainly say. This is the true basis of the so-called golden rule of construction that “Where the language of an Act is clear and explicit, we must give effect to it, for in that case the words of the statute speak the intention of the Legislature”. 8. While interpreting a provision of a Statute, if the language of the provision is clear, the court shall not add or insert any expression in the provision. Any addition or alteration may bring about a total change in the very nature of the provision itself and, it may even go against the legislative intention. It is likely that it may even defeat the purpose for which the provision is brought into the Statute and result in fatal consequences, which the legislature itself would not have intended. 9. Therefore, whatever is stated in the provision is to be strictly followed, without adding to or deleting any word from the provision. The court's job is only to give effect to the plain language of the provision, as such without effecting any alteration to the provision to suit its convenience, especially when the [Crl.A.485/2007] 6 language is clear and unambiguous. 10. A three-judge-bench of the Supreme Court held in Assessing 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 of interpretation that a statute must be construed according to its plain language and neither should anything be added nor subtracted unless there are adequate grounds to justify the inference that the legislature clearly so intended”. 11. Keeping in mind, the well-settled principles of interpretation of Statutes and on a plain reading of the provisions contained in Chapter XX and specially, Section 256 of the Code, it is clear that the accused can be acquitted under section 256(1), only on either of the two days specified in the said provision, viz., i) the day appointed for “appearance” of the accused, if summons has been issued or ii) any day subsequent thereto, to which the “hearing” may be adjourned. 12. But, the accused in this case was acquitted not on the day to which the case was posted for “appearance” of accused or for “hearing”. The acquittal order was passed on the day to which the case was posted for “evidence”. An argument is raised at the bar that once the accused appears and pleads not guilty, the case [Crl.A.485/2007] 7 is ordinarily posted for “evidence” and there is no necessity to post the case for “hearing'. Therefore, there is nothing wrong in acquitting the accused, if the complainant fails to adduce evidence, despite giving direction to adduce evidence. 13. It is also argued that if the accused can be acquitted under section 256, at the fag end of the trial on the day of “hearing”, nothing will prevent the court to acquit the accused at a previous stage, on the day of posting for “evidence”, it is contended. I cannot accept the above argument for various reasons. On a close reading of the relevant provisions of the Code, it is clear that the day of “hearing” referred to in Section 256 does not fall at the fag end of the trial. It comes at the early stage of trial. 14. The trial in summons cases commences on appearance of accused. Section 251 of the Code lays down that when the accused appears on summons or is brought before the trial court, the accused shall be asked whether he pleads guilty to the offence (of which the particulars are stated to him) or has any defence to make. If the accused pleads not guilty, the court shall adjourn the case “to hear the prosecution”, under section 254(1) of the Code. [Crl.A.485/2007] 8 15. Thus, even on a plain reading of section 251 to 256 of the Code, it is clear that after recording plea of not guilty, the case shall be adjourned to “hear” the prosecution. Therefore, “any day subsequent thereto which the hearing may be adjourned” referred to in section 256(1) of the code is the day immediately succeeding the day appointed for appearance of the accused 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 be adjourned” referred to in Section 256(1) has reference to the day appointed for “appearance” of the accused. Such day of” hearing” is the day falling in between the day fixed for appearance of accused (and recording of plea) and the day to which the case is posted for “evidence” under Section 254(1). 16. Section 254(1) of the Code mandates that (if the accused pleads not guilty), the court “shall” adjourn the case to hear the prosecution. The word used in section 254(1) is “shall” and the procedure is mandatory. When the legislature lays down a particular procedure under the Code, it is intended to be followed and, it shall strictly be followed. Hence, after recording the plea of not guilty in summons cases, trial courts shall, without [Crl.A.485/2007] 9 fail, post the case for hearing and it shall not, instead, straight away post the case for evidence. 17. Any practice followed by the courts, contrary to the mandatory provision of the Code, for whatever length of time will not gain legal sanction. Such illegal procedure will not crystallise into law. What is relevant is not, what practice is followed by the courts, but what procedure the courts are bound to follow under the Code. A procedure in the Code which is mandatory in nature shall not be skipped or ignored by the courts, without even ascertaining whether there is any purpose in laying down such procedure in the Code. 18. It appears from a reading of relevant provisions in Chapter XX of the Code that there is a purpose for hearing the prosecution at the early stage of the case. As per Section 251 of the Code, when the accused appears or is brought before the Magistrate in a summons case, the particulars of the offence shall be stated to him, and he shall be asked whether he pleads guilty or has any defence to make. Even if the court does not specifically ask him whether the accused “has any defence to make”, 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 court that the allegations in the complaint do not constitute any offence or that there is no sufficient ground to proceed against him for some or other reason like, want of sanction or because of a mistake in the address shown in the summons etc., and if it appears to the court that there are no sufficient grounds to proceed against the accused, principles of natural justice demands that the opposite party shall be heard. That is why the legislature has laid down in Section 254(1) of the Code that the court shall “hear” the prosecution. 20. If the court adjourns the case for hearing the prosecution and on that day if the complainant is absent, Section 256(1) permits the court to acquit the accused. However, even if the complainant is absent and if the court still thinks it proper to adjourn the hearing of the case to some other day, it may adjourn the hearing, instead of acquitting the accused. But, if the court is satisfied that the trial will be a futile exercise, and it will only amount to abuse of process of court, there will be no justification in dragging on the proceedings, in the absence of the complainant. So, if the court finds no proper reason to adjourn [Crl.A.485/2007] 11 the case for hearing, it shall acquit the accused under Section 256 (1) of the Code. 21. If the Magistrates alertedly follow the procedure in Chapter XX of the Code, and ask the accused whether he “has any defence to make” as stated in Section 251, and he makes a valid defence that there are no sufficient ground to proceed against him, in appropriate cases, complainant himself will understand the futility of a trial and he may drop out. He may even withdraw the case or remain absent. In such event, the proceedings in an appropriate case can be terminated, at the early stage of the trial itself in accordance with law by invoking Section 256(1) of the Code. 22.Thus, it is clear that an order of acquittal under Section 256(1) is not mechanical, though the only ground available for acquitting accused under the said provision is absence of complainant. The Court has to apply its mind to the facts and circumstances before acquitting the accused under Section 256 (1) on the ground of non-appearance of the complainant. Of course, I do not mean to say that a detailed order is to be passed by the courts under Section 256 of the Code, which revealing application of mind, because a judicial form is prescribed for [Crl.A.485/2007] 12 passing an order under Section 256 of the Code under the Criminal Rules of Practice ('the Rules' for short). Form no.11 in Appendix-1 of the Rules is the judicial Form prescribed for passing order under Section 256 of the Code and Rule 6 of the Rules lays down that the “Forms prescribed by these rules shall be used for the respective purposes herein mentioned, with such variations as the particular circumstances of the case may require”. 23. But, once the court is satisfied on hearing the defence of the accused or on its own evaluation or assessment of the relevant facts and circumstances that there are no grounds to proceed against accused and the complainant is absent on either of the two days specifically stated in Section 256(1) of the Code, the Court “shall” acquit the accused unless the court thinks it proper to adjourn the case for hearing. This course adopted by the Court will only ensure delivery of justice to the deserving party and that must be the reason why the expression, “shall ” is used in Section 256(1). 24. But, what is ordinarily done by the Magistrate courts is to acquit the accused mechanically, without application of mind to the object of the provisions contained in sections 251 to 256 of [Crl.A.485/2007] 13 the Code. The order of acquittal is passed under section 256(1) of the Code, without even ascertaining whether the day on which the order of acquittal passed is the day referred to in section 256 (1) of the Code. The Magistrate Courts acquit the accused even at the fag end of the case, giving untenable reasons, such as it is a long-pending case and it is included in the target; the complainant is not adducing evidence despite repeated directions; the case is posted as last chance for evidence; the presence of accused cannot be procured despite coercive steps taken etc., etc. Those are no reasons at all to acquit the accused under Section 256(1) of the Code. 25. I have come across with cases in which the courts acquit the accused under section 256(1) of the Code, even if complainant is present on the ground that the complainant had not adduced evidence etc. Such orders of acquittal which are purportedly passed under Section 256(1) are clearly illegal. Such orders are passed without understanding the scope of section 256(1) of the Code and also the importance of the other relevant provisions in the Code. The net result is, flow of appeals into this Court against orders of acquittals under section 256(1) of the Code, 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 merit by the trial court, more than a decade might be over and because of the delay, the parties suffer, and the very system of administration of justice fails. The courts, therefore, must be very cautious while acquitting the accused under section 256(1) of the Code, especially since the mere reason for acquittal is non- appearance of complainant. It shall adhere to the provision in Section 256 of the Code strictly and it shall act only in accordance with the language of the provision. The court shall acquit the accused under Section 256(1) of the Code, only on either of the two days, specifically stated in the said section. Any order of acquittal passed on any day other than the day specified in Section 256(1) of the Code will be illegal and without jurisdiction. 27. There is nothing in Section 256(1) of the Code to show that the accused can be acquitted on 'any day to which the case is posted for evidence'. The legislature does not seem to have intended 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 have contained some expression to indicate this. But, there is nothing in Section 256(1) of the Code even to imply that the accused can [Crl.A.485/2007] 15 be acquitted on the day to which the case is posted for “evidence”. 28. It follows therefore, that in a case in which the evidence is taken in part or in full, under section 254(1) of the Code, the court shall not acquit the accused under section 256(1) of the Code. In cases in which evidence is recorded in part or full, the Magistrate Courts shall follow only the procedure in section 255(1) of the Code (vide also Radhamany amma v. Kunju Pillai 1980 KLT 393). An order of acquittal passed under section 256 (1) of the Code, in a case in which the evidence is adduced in part is illegal. 29. Now coming to the facts of this case, I find that complainant filed affidavit in lieu of chief examination and evidence was adduced in part, under Section 254(1) of the Code. That means, the court has gone ahead the stage of “hearing” and posted the case for further “evidence”. Hence, the court ought not to have acquitted the accused under section 256(1) of the Code, since the court has no power to acquit the accused under the said section, on the day to which the case was posted for evidence. [Crl.A.485/2007] 16 30. In this context, I am of view that the Magistrates have to be alerted on the need to ask the accused in summons cases whether he “has any defence to make” under section 251 of the Code. Though such a course is open, it is not seen adopted by the Courts. If there is proper application of mind and the procedure under the Code is followed, the court may be able to identify several cases which need not go for trial. Many frivolous complaints can be wiped off, at the early stage of the trial itself. 31. If the accused is asked about his defence as stated in Section 251 of the Code and if prosecution is heard as stated in Section 254(1) of the Code, the complainant himself may be satisfied of the futility of pursuing the litigation and he may either withdraw the case or may remain absent. This would put a stop to many meritless proceedings which may otherwise be dragged on unnecessarily for years, without there being any purpose to either side. The valuable time of the court spent on such litigations could also be utilised for some other fruitful purpose. Hence, in summons cases, the Magistrate courts shall strictly follow the procedure contained in the Code, which are stated below: [Crl.A.485/2007] 17 i) On appearance of the accused under Section 251 of the Code, the court shall state the particulars of the offence to the accused (and the records must clearly indicate what were such particulars read out to accused, though a formal charge need not be framed). ii) The accused shall then, be asked whether he pleads guilty or has any defence to make. (Even if the court does not ask the accused, whether he has any defence to make, the accused will be at liberty to make his defence at this stage). iii) If the accused makes his defence or/and pleads not guilty, the court shall, without fail, post the case to hear the prosecution, as stated in Section 254(1) of the Code and hear the prosecution. iv) Further adjournments for hearing shall not be granted as a matter of routine, but the court may adjourn the case for hearing, only if it thinks it proper to do so, on application of mind. v) If there is no proper reason to adjourn the case for hearing, and the court does not acquit the accused under Section 256(1) of the Code, it shall post the case for evidence as stated in Section 254(1). vi) Once the case is posted for evidence under Section 254(1) of the Code, under no circumstance, the court shall acquit the accused under Section 256(1) of the Code. [Crl.A.485/2007] 18 32. Summing up my discussion, I hold that the impugned order 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, and proceed 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 all the Magistrate Courts in the State This appeal is allowed. Sd/- K.HEMA, JUDGE ma/krs.