Dhruvdeo Mishra vs The State of Bihar and Another

S.H.S. Abidi, J.—The Petitioner Dhruvadeo Mishra has filed this application u/s 482 Code of Criminal Procedure for quashing the order dated 30.7.85 passed by the learned Judicial Magistrate, Gopalganj in Trial No. 2258/79, 1541/84 framing charges against the Petitioner under Sections 406 and 420 IPC. It has also been prayed that the entire criminal proceeding may be quashed.

Smt. Phulmato Kuer wife of Lakhan Pandey filed a complaint against the Petitioner Dhruvadeo Mishra, Kadir Mian and Jitendra Prasad in the court of the learned C.J.M. Gopalganj saying that Petitioner had agreed to purchase plot No. 250 measuring 5 kathas from her for a sum of Rs. 3000/- and it was agreed that the entire amount will be paid to the complainant-vendor on the day of registration at the time of exchange of receipt. On this the Petitioner and licensed No. 2 took the complainant to the registry office and got the stamp papers purchased through her and gave the stamp papers to accused No. 3 to scribe the deed and the Petitioner directed write the deed in favour of his son Hari Shankar Mishra. The complainant had told the scribe that there was agreement for selling the 5 kathas of land for Rs. 3,000/-. Then accused Nos. 1 and 2 asked accused No. 3 to obtain the thumb impression of the complainant on the stamp papers and write the contents of the deed. Accused No. 3 look the thumb impression on the papers and accused Nos. 1 and 2 took the complainant to a shop for taking meal. Then the accused paid to the shop-keeper and asked her to eat. The accused Nos. 1 and 2 then told the complainant that the were going to market for taking meal, After taking meal when the complainant went to accused No. 3, the scribe then she saw accused Nos. 1 and 2 sitting and talking with the scribe. The scribe said that it was too late and the sale deed papers are to be tiled and them the papers were filed in the registry office and on the call, the complainant accepted the execution of the deed and he accused No. 1 identified her before the Registrar, The receipt of the registration was given to her. Then she demanded the amount of money from the accused No. 1 before the accused Nos. 2 and 3 The Petitioner then told her that a man was to come with the amount but he has not yet reached and he asked her to keep the receipt with herself and or reaching home after giving the money receipt will be taken back. After reaching home she demanded money from the Petitioner several times but the Petitioner had been avoiding the payment on one or the of her pretext. At last the complainant went to Gopalganj and told all the matters to her lawyer who sent a notice to me Petitioner and demanded the payment of the amount of sale. But the Petitioner did not send any reply nor pida the amount, Getting helpless she deposited Rs. 16/- as fine in the registry office on 27-(sic)-1979 and obtained the sale deed.

When she got the deed read through lawyer then she came to know that the accused in collusion had got the sale deed in respect of her 5 kathas of land for Rs. 3,000/- they had got wrongly written that the ensure of sale has already been paid to her before the execution of the deed. So the accused have cheated the complainant on account which she has suffered loss. In the complaint it has been further mentioned that the accused Nos. 2 and 3 are in collusion with accused No. 1 and so the accused may be punished in accordance with law. On these allegations the complaint (Annexure-1) was filed on which the cognizance has been taken. The accused have appeared before the learned Magistrate.

The order sheet dated 29.6.85 reads that Charges were to be farmed. The complaint was absent and an application on her behalf was made. One of the accused was present and two were absent. Both parties were heard on the question of charges. On looking to the evidence there appeared to be material against the accused Under Sections. 406 and 420 I.P.C. The case was adjourned to 24.7.85 for (sic) Charge U Sections. 406 and 420 IPC. The accused were asked to appear otherwise their hands were to be cancelled. The case was again taken up on 27.7.85 when one of the accused was absent and two were present. The defence filed an application saying that there was no material on account of which charges would be framed so they may be discharged. The court hold that after hearing the Parties 20.6.85 the order for framing of the charge has been passed and so the application or discharged of the accused was rejected and 30.7.85 was fixed for framing of the charge. It was one 30.7.85 that charges were framed against the accused Under Sections. 406 and 420 IPC and the charges were read over to the accused which they denied. Against this order dated 30.7.85 the Petitioner, being one of the accused, has come to this Court for quashing the same.

It has been urged by the learned Counsel for the Petitioner that the complainant had been absent throughout, that no case is made out from the reading of the complaint, that the occurrence is dated 11.11.78 whereas the complaint has been filed on 1.8.79. It has also been urged that before 30.7.85 there was direction to frame charge but the charges were framed only on 30.7.85, that looking to the complaint itself it appears that it is only, a civil liability and the criminal prosecution is an abuse of the process of the court with the intention for getting an order so that the civil dispute of the complainant may be strengthened. It was also said that if no payment has been made then the complainant could have taken the recourse of a suit for recovery of money or damages. It was lastly urged that from reading of the complaint us a whole it is clear that no case of cheating or an offence under sections 406 or 420 IPC has been made out. In support of his contentions the learned Counsel for the Petitioner has referred to some decisions which will be referred to hereinafter.

Learned Counsel for the complainant has urged that looking to the complaint itself it appears that a prima facie case has been made out against the Petitioner and the court has jurisdiction to take cognizance and frame charges against the Petitioner. A civil liability does not bar a criminal prosecution if the offence is made out under any provision of the Code. The Court has already ordered on 29.6.85 for framing of the charge and the order dated 30.7.85 was merely for the execution of the order dated 29.6.85, but the Petitioner has not challenged the said order dated 29.6.85. It was next said that looking to the complaint it is apparent that an offence has been made out because it was agreed that the amount will be paid at the time of exchange of receipt but the accused got it entered in the sale deed that the amount has already been paid. When it was agreed that the amount will be paid at the time of exchange of receipt then the same should have been incorporated in the sale deed and when in the deed it has been mentioned that the amount has been paid already before the execution of the deed, then it became a fraud upon the complainant. It has also been said that inspite of demand and notice through the complainant''s pleader the amount was not paid to the complainant till the filing of the complaint. Lastly it was contended that even on strong suspicion when the material is there, the charges could be framed and the High Court could not interfere with the framing of the charge He has also referred to several decisions in support of his contentions which will be referred to hereinafter.

As to the contention that the complaint discloses civil liability also the criminal prosecution should not have been lodged, the law does not lay down that the civil liability is a bar to a criminal prosecution. In the case of Jaswantrai Manilal Akhaney Vs. The State of Bombay, the Supreme Court while dealing with such contention observed at page 582 (para 12):

it was next contended, alternatively, that assuming that the Exchange Bank had dealt with the securities in contravention of the terms of the agreement the Appellant had as representing the bank, only committed a breach of contract, the remedy for which was a suit for damages and not a criminal prosecution. This argument assumes that the same set of facts cannot give rise both to a civil liability and a criminal prosecution. It is manifest that such an argument in its bald form cannot be acceptable. If there is no mens rea, or if the other essential ingredients of an offence are lacking the same facts may not sustain a criminal prosecution, though a civil action may lie, We have therefore to examine whether or not there was mens rea in this case or whether the necessary element of a criminal offence have been made out.

In the case of Mobarik Ali Ahmed Vs. The State of Bombay, it was observed by the Supreme Court:

In a case of this kind a question may well arise at the outset whether the evidence discloses only a breach of civil liability or a criminal offence. That of course would depend upon whether the complainant in parting with his money to the tune of about Rs. 5 1/2 lakhs acted on the representations of the Appellant and in belief of the truth thereof and whether those representations, when made were in fact false to the knowledge of the Appellant and whether the Appellant had a dishonest intention from the outset.

In the case of Madhavrao Jiwajirao Scindia and Others Vs. Sambhajirao Chandrojirao Angre and Others, similar questions arose and the Supreme Court dealt with it at page 711 (para 8) and observed:

Mr. Jethmalani has submitted, as we have already noted that a case of breach of trust is both a civil wrong and a criminal offence. There would be certain situatios where it would predominantly be a civil WRong and may or may not amount to a criminal offence. We are of the view that this case is one of that type where, if at all, the facts may constitute a civil wrong and the ingredients of the criminal offences are wanting.

Thus the same set of facts may subject a person to a civil liability and also to a criminal prosecution but if the ingredients of an offence are wanting and there is no mens rea and that predominantly the facts constitute a civil wrong then there should not be a criminal prosecution. But if the material on the record brings out that the person had got motive to commit the offence, that he had got nuns rea, that he had got knowledge from the very beginning that his action is illegal and wrong to his knowledge or that from the very beginning the person had got intention to deceive a person then the prosecution cannot be brushed aside simply on the ground that a civil court can be approached for the redressal of the civil wrong. Therefore, every case will have to be scrutinised to come to such a conclusion.

In this case copy of the complaint has been filed as Annexure A. In the certified copy of the order dated 30.7.85 as contained in Annexure-1 it has been mentioned that on behalf of all (2) accused "Anupasthiti patra" has been filed whereas in the original order sheet dated 30.7.85 (for which this Court called for the record at the time of dictation of judgment it has been mentioned as" Upasthiti patra" in place of "Anupasthiti patra". This mistake in the certified copy dated 30.7.85 deserves action and consideration by the learned sessions judge concerned for a direction to the copying department to be vigilant in future.

Section 415 IPC defines cheating and Section 420 IPC provides for its punishment. from the averments made in the complaint it appears that the accused by deceiving end dishonestly inducing the complainant, deceived her to consent to delivery of the property and on account of that she has suffered damage in respect of the property. The offence of cheating is there. Further it appears that from the very beginning there was no intention of accused No. 1 in collusion with two other accused to pay the said amount to the complainant. Section 4 IPC defines "dishonestly"--whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing "dishonestly".

In the case of Mahadeo Prasad Vs. State of West Bengal, the Appellant agreed to purchase from the complainant 25 ingots of tin and these 25 ingots were to be delivered by the complainant at the Gaddi of the Appellant and the amount was to be paid. The Jamadar of the complainant went to the Gaddi of the Appellant who took delivery of the ingots but kept the Jamadar waiting and did not pay the price. After waiting for long when the Appellant did not return the Jamadar returned to the complainant and reported that no payment was made though the ingots were taken away by the Appellant. A complaint was filed u/s 420 IPC saying that the complainant was induced to part with those 25 ingots of tin by the Appellant''s promise to pay cash against delivery The Supreme Court observed at page 725 (para 4):

The High Court observed rightly that if the Appellant had at the time he promised to pay cash against delivery an intention to do so, the fact that he did not pay would not convert the transaction into one of cheating but if on the other hand he had no intention whatsoever to pay but merely said that he would do so in order to (sic) the complainant to part with the goods then a case of cheating would be estabilshed.

In the case of Sant Lal Jain Vs. Avtar Singh, the Supreme Court observed at page 867 (Para 23):

The offence of cheating u/s 420 of the Penal Code as defined in Section 415 of the Code has two essential ingredients, viz. (1) deceit i.e., dishonest or fraudulent mis-repressentation to a person, and (2) the inducing of that person thereby to deliver property.

Various representations were made to the complainant at Bombay then the Supreme Court observed later in tins very case at the same page:

There is also no question that it is as a result of these representations that the Appellant (complainant) parted with his money to the tune of about Rs. 5 1/2 lakhs on three different dates. It has been found that the representations were made without being supported by the requisite facts and that this was so to the knowledge of the Appellant and that the representions were so made with an initial dishonest intention.

On these facts it is clear that all the ingredients necessary for finding the offence of cheating u/s 420 read with Section 415 have occurred at Bombay.

In the case of State of Kerala Vs. A. Pareed Pillai and Another, at page it has been observer:

It may be that the accused could not keep up the delivery of the oil tins to the railways and no thus could be despatched in respect of the said thirteen railway receipts but that fact can give rise only to a civil liability of the accused. It is not sufficient to fasten a criminal liability on them. To hold a person guilty of the offence of cheating, it has to be shown that his intention was dishonest at the time of making the promise. Such a dishonest intention cannot be inferred from the mere fact that he could not subsequently fulfil the promise.

In the case of Hari Prasad Chamaria Vs. Bishun Kumar Surekha and Others, in which the Appellant intended to start business giving in full faith a large sum of amount to the Respondent for the same the Respondent started business in their own name and refused lo render accounts or return the money. Hari Prasad Chamaria filed a complaint u/s 420 IPC against the Respondents which was quashed by the High COURT u/s 561A of the old Code of Criminal Procedure holding that mere breach of contract could not give rights to criminal prosecution and the remedy in the civil court could not be fought in the criminal court. The Supreme Court observed at page 302:

There is nothing in the complaint to show that the Respondents had dishonest or fraudulent intention at the time the Appellant parted with Rs. 35,000/-. There is also nothing to indicate that the Respondents induced the Appellant to pay them Rs. 35,000 by deceiving him. it is further not the case of the Appellant that a representation was made by the Respondents to him at or before the time he paid the money to them and that at the time representation was made, the Respondents subsequently did not abide by their commitment that they would show the Appellant to be the proprietor of Drang Transport Corporation and would also render accounts to him in the month of December, might create civil liability for them but this fact would not be sufficient to fasten criminal liability on the Respondents for the offence of cheating.

in the case of Monoranjan Sinha Vs. Bishamborlal Saboo, it was observed at page 1625 (Para (sic)) by a Bench after relying upon the aforesaid, two decisions of the Supreme Court as follows:

Therefore, I hold that in a case of this nature it is not enough for the complainant to allege that the accused his failed to keep or honour his promise. He is to establish by making some allegation that he was deceived by the accused and in order to show that he must make at least an allegation to the effect, that he was deceived by a false representation of the accused at or before the time he paid the money, I am of the firm opinion that there must be some allegation that the intention of the accused was dishonest at the time of the making of promise or the representation and such dishonest intention cannot be inferred from the mere fact that the accused could not subsequently fulfil his promise. I am of the opinion that if these essential elements at the offence u/s 420 IPC are not even alleged in the complaint petition or stated in the initial deposition this Court can quash proceedings in exercise of its power u/s 561-A of the Code.

A learned single judge of this Court in the case of Hare Krishna Sahay v. State of Bihar 1980 BBCJ 156 has observed that when a ticket was purchased through payment of cheque but the cheque was dishonoured on presentation and then FIR was lodged but it did not disclose any element of inducement which was dishonest or fraudulent, such an element cannot be inferred from dishonour of cheque. Dishonour is a broken promise and not an offence punishable u/s 420 IPC.

In the case of S.B. Goenka Vs. Rajendra Prasad Agarwalla, it was observed at page 1229 (para 4):

Every breach of contract does not constitute an act of cheating Dishonest intention could not be inferred from the mere fact that tie Petitioner did not subsequently fulfil the promise. I here was no material before the Magistrate on which he could be satisfied that the Petitioner had any dishonest intention at the time of the alleged promise or inducement The dispute was purely of a civil nature. The proceeding initiated was clearly an abuse of the process of court and on the facts alleged no process ought to have been directed against the Petitioner.

In the case of Manoranjan Haldar Vs. Mechfab Engineering Industries, it was said that there was no intention to cheat at the time of initial transaction, his subsequent conduct cannot make transaction amount to cheating.

Thus from all these it is clear that for an offence of cheating there should be dishonest and fraudulent misrepresentation and that the person concerned should be induced to part with the property or make payment or similarly in some such situations the accused had no intention to pay the money or part with the property and also that the representations were false and untrue to the knowledge of the accused at the time of making the promise. A person may not be able to fulfil his promise subsequently but if it is shown that from the very inception he has got no intention to fulfil the promise and he was making false representation and inducement to the victim and that those inducements and representations were false to the knowledge of the accused himself from the very beginning, then an offence is made out. There should be evidence of mens rea. Every breach of contract cannot amount to an offence of cheating. It is not necessary that the false pretence or promises should be made in express words of the accused. They can be inferred from all the circumstances including the conduct of the accused in obtaining the property or money.

In this case looking to the complaint as extensively quoted above, it is clear that the Petitioner-accused had induced the complainant to execute the deed for the portion of property for a sum of Rs. 3,000/- and on that inducement she agreed to execute the deed, came to the registry office and it was expressly given out to her that the amount of money will be paid at the time of Badlain. After this when she went to take food and also accused Nos. 1 and 2 went to take food, the complainant on return found that accused No. 1 and 2 were present at the place of accused No. 3 and a deed was already written and accused No. 3 advised them to file the document in the registry office as it was getting late. Then the document was presented before the Registrar where on account of previous agreement that the amount whould be paid to her at the time of exchange of receipt the amount was not paid and she was made to understand that the money could not come and so she would be paid at her place. When she returned home and demanded money it was not given to her. Ultimately she had to obtain the deed on payment of fine of Rs. 16/-. After reading of the document it transpired that it was written that the money was already paid to her. Then a notice was given to the accused by her counsel. The endorsement that the money has already been paid to her contrary to the settlement that the money will be paid at the time of exchange of receipt is clear at this stage to show that the Petitioner had got no intention from the very beginning to make the payment and that the accused Nos. 1 & 2 has been falsely giving out to her that the money would be paid but it was never paid to her. All these materials are in the complaint itself which at this stage could not be brushed aside for taking cognizance and also framing charges against the Petitioner.

At the time of framing of the charge the court is not to judge meticulously the evidence produced by the prosecution for finding the truth, veracity or effect of the evidence. The evidence is not to be considered in detail or weighed in balance. The court is not to see whether the evidence is sufficient for the conviction at the end. Till the stage of framing of the charge the prosecution is not able to bring the whole evidence and that evidence which has been brought on the record has not been subjected to cross-examination, then how the court can come to a final verdict by applying the standard of test and proof of the stage of final hearing at this stage that the evidence is unreliable and that no charges should be framed. Rather on the strong suspicion arising out of the material already on the record, the court may presume the existence of the foundation for the offence. In such a situation the court has no option but to frame the charges which are to be subjected to scrutiny later on the basis of the evidence to be produced by the parties. If the evidence produced later after cross-examination and also close examination, scrutiny and testing on the standard of law is found unworthy of reliance and does not inspire confidence then an acquittal of the accused is a must, otherwise the case may end in conviction in accordance with law At the initial stage if the evidence does not appear to be infirm or there is no jurisdictional flaw or the case does not give out a look of absurdity then this very evidence should not be treated as perverse illegal and unreliable. In the case of State of Bihar Vs. Ramesh Singh, the Supreme Court at page 2019 (para 4) has observed as follows:

It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sentive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied as the stage of deciding the matter u/s 227 or Section 228 of the Code At that stage the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction, Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the court to say that there is no sufficient ground for proceeding against the accused. If the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. An exhaustive list of the circumstances to indicate as to what will lead to one conclusion or the other is neither possible nor advisable. We may just illustrate the difference of the law by one more example. If the scales of pan as to the guilt or innocence of the accused are something like even at the conclusion of the trial, then, on the theory of benefit of doubt the case is to end in his acquittal But if on the other hand it is so at the initial stage of making an order u/s 227, then in such a situation ordinarily and generally the order which will have to be made will be one u/s 228 and not u/s 227.

In the case of Union of India (UOI) Vs. Prafulla Kumar Samal and Another, the Supreme Court laid down the following principles at page 369 (para 10):

Thus on a consideration of the authorities mentioned above the following principles emerge:

(1) That the Judge while considering the question of farming the charges u/s 227 of the Code has the undoubted power to shift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out.

(2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial.

(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if we views are equally possible and the judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.

(4) That in exercising his jurisdiction u/s 227 of the Code the Judge which under the present Code is a senior and experienced Court cannot act merely as a Post-Office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.

In the case of Supdt. and Remembrancer of Legal Affairs, West Bengal Vs. Anil Kumar Bhunja and Others, at page 55 (para 18) it was observed:

It may be remembered that the case was at the stage of framing charges; the prosecution evidence had not yet commenced. The Magistrate had, therefore, to consider the above question on a general consideration of the materials placed before him by the investigating Police Officer. At this stage as was pointed out by this Court State of Bihar Vs. Ramesh Singh, , the truth, veracity and effect or the evidence which the prosecutor proposes to adduce are not to be meticulously judged. The standard of test, proof and judgment which is to be applied finally before finding the accused guilty or otherwise, is not exactly to be applied at the stage of Section 227 or 228 of the Code of Criminal Procedure, 1973. At this stage, even a very strong suspicion founded upon materials before the Magistrate, which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged; may justify the framing of charge against the accused in respect of the commission of that offence.

In the case of R.S. Nayak Vs. A.R. Antulay and Another, while dealing with differences in. Sections 227, 245(1), 239 and 244 Code of Criminal Procedure the Supreme Court at page 2071 (para 44) observed:

In spite of the difference in the language of the three sections, the legal position is that if the trial court is satisfied that a prima facie case is made out, charge has to be framed.

Thus in this case considering the entire material if comes out that the court below was right in the framing of the charges and there is nothing for this Court to interfere. When the question of framing of the change was challenged in the Supreme Court in the case of Raghubir Singh and Others Vs. State of Bihar, their lordships while repelling the contentions that there was no material whatsoever to warrant the framing of the charges for any of the offences mentioned in the charge-sheet other then mentioned in Section 165A, observed at page 157 (para 14 ):

We desire to express no opinion on this question. It is not a matter to be investigated by us in a petition under Art 32 of the Constitution. We wish to emphasise that this Court can not convert itself into the court of Magistrate or a Special Judge to consider whether there is evidence or not justifying the framing of the charge.

As to the contention that the complainant has been absent and the charges have been framed in her absence so there should have been order for dismissal of the complaint u/s 256 Code Criminal Procedure the order sheet dated 30.7.85 shows that the complainant was absent. But the accused have not raised this objection in the trial court and bad it been raised there the lower court would have passed some orders. Section 256 Code of Criminal Procedure provides for dismissal of the complaint on date of hearing if the complainant is absent. but the division Bench of the Punjab High Court in The State of Haryana Vs. Mansa Ram, referring to Section 247 of the old Code which had got the amendment of the proviso by Act No. 26 of 1955 that where the Magistrate is of the opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case observed at page 387 (para 7):

By this amendment of power to proceed with the case despite the absence of the complainant has been widened and such power can be exercised even in the case of a private complainant not with standing the fact that no application for dispensing with the attendance of the complainant is made. The rule laid down by the Division Bench in The State Vs. Gurdial Singh Gill and Others, , was later followed by another Bench of this Court Prabhu Dyal v. R. Mudgil (1966) 68 P L.R. 363 : 1966 CriL.J. 1045 and also approve by a Bench of the Delhi High Court in Mohd. Yamin Vs. Zafar Mohammad and Others, . In view of this clear interpretation of Section 247 of the Code of Criminal Procedure the impugned order of the Respondent''s acquittal cannot be sustained.

A learned single Judge of this Court in the case of The State of Bihar Vs. Ayodhya Sharma Sudhakar and Others, :

It seems to me that a Magistrate is under a duty before acquitting the accused in the absence of the complainant u/s 247 of the code, to apply his mind to the question whether there are any good reasons for adjourning the hearing of the case or for dispensing with the personal attendance of the complainant. If he finds that there is no reason for either he is bound to acquit the accused and not pass any other order. In other words if he did neither adjourn nor proceed with the case he had no option but to acquit the accused. If, however, the Magistrate does not apply his mind at all to the questions aforesaid it would be ignoring the provisions contained in the same section of the code under which he would be acquitting an accused. It could not, to my mind, have been the intention of the legislature to lay down that a Magistrate is bound to dismiss a complaint as soon as he finds a complainant absent without considering the question regarding the postponement of the hearing or dispensing with the personal attendance of the complainant. If the personal attendance of every complainant was a must in all cases irrespective of any other consideration, the legislature would not have provided for the Magistrate dispensing with such attendance for good reasons. Even the legislature Would not have provided for adjournment of the hearing had it not been the intention of the legislature that before acquitting an accused the Magistrate should apply his mind to the question of adjourning the hearing of the case to another date provided there were reasons for doing so. The view which I have taken is supported by different decisions of different other High Courts.

A division Bench of Gauhati High Court in Golam Jalani Ansari v. Kebal Chand Sethia and Anr. 1977 Cr.L.J. (Notes) 12 has said:

Section 247 as amended in 1955, inclusive of the proviso, clearly shows that the Magistrate is left with a discretion in the matter of acquitting the accused for absence of the complainant unless for some reason he thinks proper to adjourn the hearing of the case. This necessarily means that the said discretion has to be exercised in a judicious manner.

Where after taking the entire evidence for the complainant the case was fixed for consideration of the charge and the Magistrate acquitted the accused on the ground that the complainant was absent, held that the presence or absence of the complainant on the date fixed would neither have helped nor hindered the Magistrate in the matter of the further steps to be taken by him either to frame a charge or to write an order of discharge. The Magistrate did not exercise his discretion in judious manner by dismissing the complaint and acquitting the accused. Mohd. Yamin Vs. Zafar Mohammad and Others, and The State Vs. Gurdial Singh Gill and Others, , Rel. on. (case law discussed.).

This proviso to Section 247 (old code) is also the same to the present Section 256 of the Code of Criminal Procedure, 1973, and the option has been given to the court that where the court is of the opinion that the personal attendance of the complainant is not necessary, the court may dispense with the appearance and proceed with the case in the present case also the charges were to be framed by the Magistrate and the material has been brought on the record and so the court could proceed without dismissing the complaint. If the accused had felt aggrieved and were apprehending prejudice to their case they should have pointed out the same. Apparently it looks that there is no prejudice to the Petitioner or any of the accused. The court is to do justice. If the examination of the complainant was essential or any thing it had to do then the court could have insisted upon the presence of the complainant. But when the proceeding of the court can continue without any irregularity or any obstacle in the procedure, the non-appearance of the complainant can be dispensed with by the court by application of mind and considering the situations. As such this contention of the learned Counsel for the Petitioner has got no force.

In the result this application has no merit and it is accordingly dismissed. The interim order dated 20.8.86 is vacated. Let the lower court''s records be sent to the court below as early as possible for disposal of the ease in accordance with Law.