Find a Lawyer

Criminal Miscellaneous No. 1028 of 1963, decided on 24th April 1963.

----

------S. 561‑A‑Exemption from appearance in Court‑Complainant may be granted such exemption under S.561‑A‑ (Complainant suffering from heart ailment‑Exempted from appearing till recovery or when his attend ance became necessary for progress of case).

State of Bombay v. Nilkanth Shripad Bhave and another A I R 1954 Bom. 65 ref.

S. 252 (l)‑Rule that complainant should be examined in first instance‑Provisions directory‑Complainant absent for sufficient cause‑Case may proceed in complainant's absence‑Recording of prosecution witnesses before examination of complainant does not vitiate trial.

Matilal Chakravarty v. The King A I R 1949 Cal. 586 ; Rahat Ali Amjad Ali and others v. Muhammad Murad A I R 1938 Nag. 103 ; Kewal Ram v. Emperor A I R 1935 Pat. 515 ; Hari Narayan Das and others v. The State A I R 1953 Cal. 496 and Gajadhar Singh v. Emperor A I R 1943 Pat. 424 ref.

Sh. Shaukat Ali assisted by Sh. Muhammad Nazim for Petitioner.

Ch. Nazir Ahmad Khan, Sh. Jan Hussain and Kh. Bashir Parvez for Respondents.

Date of hearing : 24th April 1963.

In this case witnesses for the prosecution were summoned for the 23rd of April 1963, and two or three succeeding days, but when the case was called on the 23rd of April 1963, the complain ant was absent, although the witnesses summoned for that day were present. It was stated by Sh. Shaukat Ali, the learned counsel for the complainant that the latter was lying ill at Gujranwala, suffering from a heart ailment described as angina pectoris, and, therefore, unable to attend the Court. A medical certificate was also produced in support of this statement. The learned counsel requested that the presence of the complainant be dispensed with due to his illness, and the evidence of the witnesses who have been summoned be recorded. A written application to the same effect has also been presented today. This request has been opposed by Mr. Nazir Ahmad Khan, the learned counsel for the accused persons, on the ground that there is no provision in the Criminal Procedure Code for exempting the attendance of a complainant in a complaint case and, secondly on the ground that under subsection (1) of section 252 of the Criminal Procedure Code the complainant has to be examined in the first instance before other prosecution evidence can be recorded.

2. I shall first take up the question of the exemption requested for by the complainant. There is no provision in the Criminal Procedure Code dealing directly with this subject, but the effect of non‑appearance of a complainant is dealt with in two sections of the Code, namely, 247 and 259. The former section deals with summons cases and provides that if the complainant does not appear at any hearing of the case, the Magistrate should acquit the accused, unless for some reason he thinks it proper to postpone the case to some other date. Section 259 of the Code deals with the effect of the absence of a complainant in a warrant case and lays down that :‑‑

"When the proceedings have been instituted upon complaint, and upon any day fixed for the hearing of the case the com plainant is absent, and the offence may be lawfully compounded, or is not a cognizable offence, the Magistrate may, in his discretion, notwithstanding anything hereinbefore contained, at any time before the charge has been framed, discharge the accused."

It will be seen that section 259 contemplates the continuance of proceedings, even in the absence of the complainant, if the offence is not compoundable or is cognizable, or if the charge has been framed.

3. In the absence of an express provision relating to the grant of exemption from appearance to a complainant, the matter might be regulated by the provisions of section 561‑A of the Criminal Procedure Code. It is not necessary to deal at any length with the powers which the Court may exercise under this section, and, I think, it would suffice to refer to the opinion expressed by their Lordships of the Full Bench of the Bombay High Court in State of Bombay v. Nilkanth Shripad Bhave and another (A I R 1954 Bom. 65) to the following effect:‑

"As section 561‑A was enacted to emphasise the fact that the High Court has the widest jurisdiction to pass orders to secure the ends of justice, section 561‑A must give the power to the High Court to entertain applications which are not contemplated by Criminal Procedure Code. Therefore, if the High Court feels that ends of justice require that an order should be made in an application, although the application is not contemplated by the Code, the High Court will entertain the application and make the necessary orders to secure the ends of justice."

4. It seems to me that even though there is no express provision in the Criminal Procedure Code relating to the grant of permission to a complainant to absent himself' from the hearing of the case, this Court would have the power under section 561‑A, Cr. P. C., to grant such exemption, if the material placed before it is sufficient to make out a case that it could be in the interest of justice so to do. Now, in the present case this complaint was instituted in the Court of the Additional District Magistrate, Lahore, on the 12th of December 1961, and was transferred to the High Court on the 26th of April 1962. It was then referred to the learned Sessions Judge of Lahore for a preliminary enquiry under section 202 of the Criminal Proce dure Code, and some of the accused persons were summoned on the 19th of November 1962. Since then no evidence could be recorded due to a variety of reasons. When at last a date for the recording of evidence was fixed and the witnesses served, the complainant has fallen ill and is unable to appear personally in this Court. If his personal attendance is insisted upon, a large number of witnesses, who have been served, will have to de sent away and the case will be unduly prolonged. Further, the accused persons are police officers, and their repeated appear ances in this Court, without the case making any progress, are also against the public interest. These circumstances, in my view are enough to justify the exercise of the inherent powers of this Court under section 561‑A of the Criminal Procedure Code. It was submitted by qtr. Nazir Ahmad Khan, the learned counsel for the accused, that there is no evidence as to the illness from which the complainant is suffering, nor as to its probable duration. It was pointed out that in the medical certifi cate submitted on his behalf the complainant is stated to be a case of suspected angina pectoris and the opinion is expressed that:-

"it is not advisable for him to undertake a journey just now."

It is true that the medical certificate is not in very specific or precise terms, but the problem before me is about the pro ceedings which are to be taken immediately in this case, namely, today and the succeeding days, for which witnesses have been summoned. The disease from which the complainant is suffering, is a heart ailment, and an elementary precaution for such a patient is to avoid everything strenuous or exciting during or soon after an attack.

5. For these reasons I would accept the prayer made on behalf of the complainant and grant him exemption from personal appearance at the hearing of this case, until such time as he recovers or his attendance becomes necessary for the progress of the case.

6. Having agreed to grant exemption to the complainant from personal appearance, the question which I have now to consider is whether the case can proceed in view of the provi sions contained in subsection (1) of section 252 of the Criminal Procedure Code. For facility of reference this section may be reproduced here:-

"Section 252 (1) : When the accused appears or is brought before a Magistrate, such Magistrate shall proceed to hear the complainant (if any) and take all such evidence as may be produced in support of the prosecution."

7. It was contended by Mr. Nazir Ahmad Khan that the language of this subsection is quite plain and capable of yielding only one meaning, namely, that when the accused appears or is brought before a Magistrate, the first thing the Magistrate has to do is to proceed to hear the complainant, if any, and then to take all such evidence as may be produced in support of the prosecution. It was stated that the Legislature had a definite purpose in enacting this provision, namely, to ensure that in the case of a private complaint, the Court as well as the accused should know in the very beginning what precisely is the case of the complainant. In order to re‑in-force this submission,

Mr. Nazir Ahmad Khan referred to Matilal Chakravarty v. The King (A I R 1949 Cal. 586). In paragraph (8) of that judgment Harries, C. J., observed as follows :‑

"Before dealing with the case, I should like to refer to another matter. To prove the case for the prosecution ten witnesses were called and the main witness, namely, the com plainant B. C. Dutt, was not called until practically the end of the hearing of the evidence in chief. He was in fact the ninth witness called. No one could follow this case intelli gently without knowing what the complainant had to say and I cannot understand Magistrates allowing the prosecution to keep back the main witness until the very end of the examina tion‑in‑chief of the prosecution witnesses. The prosecution frequently desires to keep the main witness to the end in order that it may fill up all gaps which have been left by earlier witnesses and possibly explain what appear to be contradic tions of earlier witnesses. A case can only be appreciated if it is presented properly and the proper way to present facts in most cases is to present facts chronologically. The whole of this case turns on whether the complainant had been cheated and the other evidence is wholly unintelligible without the evidence of the complainant that he purchased these shares as the result of certain representations. Magistrates should insist that cases are presented before them intelligently and properly and should not allow the prosecution deliberately to keep witnesses back until practically the last day in the trial."

8. The learned counsel for the accused also relied on Rahat Ali Amjad Ali and others v. Muhammad Murad (A I R 1938 Nag. 103). The main question in that case was regarding the interpretation of sub section (2) of section 252 of the Criminal Procedure Code with which we are not directly concerned in the present context, but the learned Judge made some remarks about subsection (1) also, and they appear on page 104 of the Report:-

"It is quite obvious that in the present case on the day when the accused appeared in answer to the summons which had been issued, the complainant appeared and he had no witness present with him. The Court certainly neglected to examine the complainant on that day, and in so far failed to comply with the provisions of the first part of section 252 ; but that would not vitiate the trial. There was, then, no evidence produced in support of the prosecution, and the next part of section 52 then came into play."

9. A further objection raised by the learned counsel for the accused is that in case the complainant is not examined at the initial stage as required by subsection (1) of section 252, and he is granted exemption from personal appearance for an inde finite time, the trial of the case will be prolonged, as it will not be possible for the Court to act under section 253 of the Criminal Procedure Code, which contemplates the discharge of accused persons after taking the evidence referred to in section 252, which obviously includes the statement of the Com plainant.

10. On behalf of the complainant, Mr. Shaukat Ali cited several authorities, most of which were, however, unfortunately, not directly relevant to the point in issue. However, two of them are of some assistance and may be briefly noticed here. In Kewal Ram v. Emperor (A I R 1935 Pat. 515) the following observations appear in the last column of page 529 of the Report:

"It was lastly contended by Dr. Sen that the procedure adopted by the Courts below was irregular in that the com plainant, the Deputy Commissioner, was not examined in accordance with the provisions of section 200, Criminal Proce dure Code. The answer to that contention is that as the complaint purported to be made by a public servant in the discharge of his official duties, his examination was not required [section 200 (aa)]. A similar objection was raised with reference to section 252, Criminal Procedure Code, which requires that when the accused appears or is brought before a Magistrate, such Magistrate shall proceed to hear the complainant (if any) and shall take all the evidence as may be produced in support of the prosecution. Although the section makes it incumbent upon a Magistrate to hear the complainant (if the latter appears in support of the complaint) it does not, in my opinion, vitiate a conviction in which the complainant has not been examined. There are, of course, cases where a complainant dies before the trial commences and the prosecu tion proceeds on the evidence of other witnesses who are able to speak to the occurrence. It is not necessary to discuss this point at any length because the objection was not taken at the earliest stage . . . . ."

11. Hari Narayan Das and others v. The State (A I R 1953 Cal. 496) was a case where the complainant persistently remained absent from the Court and did not present himself for examination in spite of several opportunities given to him and the Magistrate discharged the accused under section 253, Criminal Procedure Code, and it was held that it was not in the interest of justice to set aside the order of discharge and order a further enquiry at the instance of the complainant. It appears to Mr. Shaukat Ali that this case lends some assistance to the contention that subsection (1) of section 252 does not contain any mandatory rule that the complainant must be the first to be examined.

12. The last point made by Mr. Shaukat Ali is that it is open to the prosecution to examine their witnesses in any order they choose and for this purpose he places reliance on Gajadhar Singh v. Emperor (A I R 1943 Pat. 424) as well as section 135 of the Evidence Act.

13. There can be no doubt that in a complaint case it is clearly desirable that the evidence of the complainant should generally be recorded in the first instance, but the question is whether this requirement is mandatory in subsection (1) of section 252 of the Criminal Procedure Code. I have already observed that no direct authority is available on the point, but from the authorities cited by the learned counsel for the parties, the conclusion which seems to emerge is that if the complainant is present, when the accused appears or is brought before a Magistrate, then the complainant should be examined ; but even if he is not examined, the omission to do so does not vitiate the trial. I am, therefore, of the view that the provisions of subsection (1) of section 252 are of a directory and not manda tory nature. If in a particular case the complainant is absent or for some other reason his evidence cannot be recorded, or has not been recorded, before the evidence of other witnesses who may be present on the day when the accused appears, the trial shall not be vitiated for that reason alone.

14. On the view that I have expressed above, I consider that if the presence of the complainant is dispensed with, the record ing of evidence can commence even in his absence. I would, therefore, direct that the evidence of the prosecution witnesses, who have been served and are present, should commence.

K. B. A./A. H. Order accordingly.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.