Dwijendranath Dutta vs Siria Jena and Others

S. Acharya, J.—The accused persons, the Respondents in this appeal, have been acquitted u/s 247, Code of Criminal Procedure on the absence of the complaint from Court on 2-2-1973, and hence this appeal by the complainant.

On 2-2-1973 one I of the accused persons was absent. A time petition to condone his absence for the day was filed on that date and that petition was allowed by the Magistrate. On that day on behalf of the complainant, a petition was filed to allow him time to examine two persons who, as stated in the said petition, were ill on 2-2-1973. The names of those witnesses, who were intended to be examined by the complainant, undisputedly appear in the complaint petition. When the case was called for hearing, the complainant and his lawyer were not present in Court. The Court, without ascribing any convincing and cogent reason for not granting the above mentioned petition of the complainant, by one stroke of pen rejected the complainant''s aforesaid petition, and on the ground that the complainant was absent on call on that date dismissed the case and acquitted the accused persons u/s 247, Criminal Procedure Code.

An order of acquittal passed u/s 247, Code of Criminal Procedure obviously is vitiated with all consequences u/s 403, Code of Criminal Procedure and the effect of such an order is obviously of immense significance and factual consequence. So in quite a number of decisions it has been held that a Magistrate in passing an order of acquittal u/s 247, Code of Criminal Procedure must act in a cautious and judicious manner, and should not feel bound to pass an automatic order acquitting the accused persons merely on the ground of the absence of the complainant. (See Sanatan Rout Vs. Sagari Dei and Another, and Jadumani Das Vs. Govind Hiswal and Others, . Bankey Behari Lal v. Hirendralal Adhikary and Anr. 1972 (1) C.W.R. 264. Section 247, Code of Criminal Procedure does not call for such an automatic action on the part of the Magistrate. The words "unless for some reason he thinks to adjourn the hearing of the case to some other date" appearing in Section 247 vest judicial discretion on the Magistrate and the same should be cautiously exercised on judicial considerations.

In this case, admittedly a petition had been filed on behalf of the complainant to grant him some time to enable him to produce two of his witnesses to be examined in this case. The Magistrate has not disposed of that petition on merits. The witnesses who were intended to re-examined by the complainant by the said petition figure as witnesses in the complaint petition. So the Court should have applied its mind and should have passed a judicious order on the merits of that petition. The complainant''s lawyer of course was absent at the time when the said case was taken up for hearing. It was certainly undesirable and improper for the advocate to remain absent from the Court at the time when the case was taken up for orders. But merely on the absence of the lawyer the Court should not have proceeded to pass an order of acquittal in a casual and automatic manner without disposing of the said petition on merit.

Moreover, in this case one witness had been examined on behalf of the complainant. If the Magistrate did not like to grant any adjournment to the complainant as prayed for in the above-mentioned petition, he could have closed the prosecution case on that date, and should have asked the accused persons to enter upon their defence and produce evidence if any on their behalf. A''S one of the accused persons was absent on that date, the Magistrate could not have examined that accused u/s 342, Code of Criminal Procedure on that date. Three of the accused persons were represented by lawyers, and so they also could not have been examined u/s 342, Code of Criminal Procedure on that date. On that score also the Court was to grant an adjournment in this case unless it considered that to be thoroughly unnecessary in the merits of the case.

On a consideration of the above facts and circumstances of this case and on bearing the counsel appearing for both the parties I am of the view that the Court was not justified in passing the order of acquittal u/s 247, Code of Criminal Procedure in the circumstances of this case. I, therefore, set aside the order of acquittal and direct that the case be restored to the file of the Court below and the same be tried and disposed of expeditiously in accordance with law. The Court below on receipt of the lower Court records should issue notice to both the parties fixing a firm date for the examination of the complainant and his witnesses, and on that date the complainant must examine all his witnesses, and no further time will be granted to him on this score. After examining witnesses on behalf of the complainant, the Court should proceed to dispose of the case as quickly as possible in accordance with law.

The Appeal accordingly is allowed.

Send back the L.C.R. Immediately.