1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 19.07.2011 CORAM THE HONOURABLE MR.JUSTICE S.PALANIVELU CRL.A.(MD)NO.6 of 2011 B.Jamal Mydeen ... Appellant / Complainant Vs. T.Sukhose Narayan .... Respondent / Accused PRAYER: Criminal Appeal is filed under Section 378 of Criminal Procedure Code, to set aside the order of learned Judicial Magistrate No.IV, Madurai in S.T.C.No.171 of 2007, dated 25.06.2010 by allowing this Criminal Appeal and directing the learned Judicial Magistrate No.IV, Madurai to take on file of S.T.C.No.171 of 2007 within the period stipulated by this Court. For Appellant : Mr.A.Haja Mohideen For Respondent : No appearance O R D E R The Criminal Appeal is filed to set aside the order, dated 25.06.2010 in S.T.C.No.171 of 2007, on the file of the learned Judicial Magistrate No.IV, Madurai and direct the learned Judicial Magistrate No.IV, Madurai to take the complaint on file. 2. The appellant is the complainant before the Court below in S.T.C.No.171 of 2007, on the file of the learned Judicial Magistrate No.IV, Madurai. When the case was posted for hearing on 25.06.2010, the complainant did not appear and hence, bailable warrant was pending against the accused. Hence, this Court for the non-appearance of the petitioner before the Court, the learned Judicial Magistrate has dismissed the complaint, acquitting the accused. This order has been challenged before this Court. 3. Heard the learned counsel appearing for the appellant. 4. The following is the impugned order is before this Court and the same is extracted hereunder:- “Complainant absent. No representation. Accused absent. Bailable warrant pending. Court notice served on the complainant. In spite of Court notice complainant failed to appear before Court. Complainant is called at 10.40 a.m, 12.00 noon and at 02.30 p.m. Court witness examined, accused is absent. Hence complaint is dismissed under Section 256 Cr.P.C and accused is acquitted in terms of 256 Cr.P.C.” https://hcservices.ecourts.gov.in/hcservices/ 2 5. It is no doubt true that the Court already issued notice to the complainant and the same was served upon him. However, he was not present before the Court on the date of hearing as mentioned in the grounds of appeal. It is stated that since the petitioner was affected with Jaundice and taking country medicine, he could not appear before the court and his absence was bonafide. 6. In the considered view of this Court, the Court below should have accorded another opportunity to the complainant to appear on the date of hearing. The accused was also absent and the Court has to see whether the presence of the complainant was essential for the progress of the case. If the presence of the complainant is not noted for an particular hearing, the Court need not dismiss the complaint for his non-appearance. It ought to have adjourned the same to some other day. In the impugned order, it is not stated that the presence of the complainant was required for the hearing on 25.06.2010. 7. In the above said circumstances, this Court is of the view that one more opportunity may be granted to the complainant to be present before the Court for further proceedings. 8. In the said view of this matter, the order challenged before this Court is liable to be set aside and accordingly, the Criminal Appeal is set aside. 9. In view of the said circumstances, the Criminal Appeal is allowed directing the learned Judicial Magistrate No.IV, Madurai to restore the S.T.C.No.171 of 2007, on its file and proceed with the same in accordance with law. Consequently, connected miscellaneous petition is closed. Sd/- Assistant Registrar(AE) /True Copy/ Sub Assistant Registrar To 1. The Judicial Magistrate No.IV, , Madurai. 2. The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai +1cc to Mr.A.Haja Mohideen, Advocate, Sr.No.23804 CRL.A.(MD)No.6 of 2011 19.07.2011 ps SMA/28.7.2011/4C/2P https://hcservices.ecourts.gov.in/hcservices/