Kumbhar Dhulabhai Kalubhai vs Patel Ganeshbhai Fulabhai and Another

N.G. Shelat, J.—On 15-4-66 the learned Magistrate before whom the Criminal Case No. 438 of 1966 was pending, passed an order

below Ex. 1 whereby summons were directed to be issued against the accused for offences under Sections 323 and 342 of the Indian Penal Code.

The case was directed to be registered accordingly. As the proceedings of the case show, it was then fixed on 28-4-66 for service of the summons

to the accused. On that day it appears that the accused was absent though served. At the same time the complainant was also absent. His pleader

was, however, present. Since the complainant was absent when called out and as his learned advocate said that he had no instructions, the learned

Magistrate passed an order whereby the accused came to be acquitted u/s 247 of the Criminal Procedure Code. Feeling dissatisfied with that

order passed on 28-4-66. by Mr. M. M. Modha, Judicial Magistrate, First Class, Kheralu, the complainant has come in appeal before this Court.

It was pointed out by Mr. Kamdar, the learned advocate for the appellant, that on that very day at about 1-00 p. m. the complainant did attend

the Court and a request was also made to the learned Magistrate for setting aside the order passed by him in the case. In respect of it he made an

affidavit before the Taluka Magistrate, Kheralu, on that very day stating the circumstances in which his coming to Kheralu was delayed and about

his having attended the Court at 1-00 p. m. on that very day, The learned advocate who appeared for the complainant has also made an affidavit

and has borne out the statements made by the complainant in his affidavit. In other words, it appears clear that on that very day he attended the

Court, but since before his coming to Court the accused came to be acquitted u/s 247 of the Criminal Procedure Code, nothing could be done in

that respect.

Apart from the reasonableness or sufficiency of the cause of his absence, it appears that the learned Magistrate has not properly followed the

provisions of law relating to the procedure in respect of trial of summons cases under Chapter XX of the Criminal Procedure Code. Section 242

says that when the accused appears or is brought before the Magistrate, the particulars of the offence of which he is accused shall be stated to him,

and he shall be asked if he has any cause to show why he should not be convicted. Then Section 243 says that if the accused admits that he has

committed the offence of which he is accused, his admission shall be recorded and, if he shows no sufficient cause why he should not be convicted,

the Magistrate may convict him accordingly. It is thereafter that we find Section 244 of the Criminal Procedure Code which contemplates the

procedure when no such admission of guilt has been made by the accused in the case. Sub-section (1) of Section 244 says that ""if the Magistrate

does not convict the accused under the preceding section or if the accused does not make such admission, the Magistrate shall proceed to hear the

complainant (if any), and take all such evidence as may be produced in support of the prosecution, ....."" On a perusal of these three sections in

Chapter XX of the Criminal Procedure Code, it appears clear that the Magistrate can only proceed with the hearing of the case in the sense to

record the evidence of the complainant not only after the accused is present before the Court but his plea is recorded in respect of the allegations

levelled against him in the case. It is then that he has to consider as to whether the absence of the complainant justifies the Court to pass an order

of acquittal of the accused u/s 247 of the Criminal Procedure Code. Now Section 247 runs thus :--

If the summons has been issued on complaint, and upon the day appoint- ed 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 hereinbefore

contained, acquit the accused, unless for some reason he thinks proper to adjourn the hearing of the case to some other day:

Provided that 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.

The first part of this Section does give power to the Magistrate to acquit the accused, if the complainant does not appear on the date of hearing of

such a case, but that order can be passed if the learned Magistrate does not think it proper to adjourn to some other date for some reason and

therefore he has to exercise his discretion of acquitting the accused if he finds no reason to adjourn the case. The discretion has to be exercised in a

judicious manner and not in a manner as to cause miscarriage of justice. It has to be realised at that time that the effect of any such order of

acquittal u/s 247 of the Criminal Procedure Code, is a bar to any subsequent complaint on the same facts, having regard to Section 403 of the

Criminal Procedure Code. The learned Magistrate could have seen that in no case, the hearing of the complainant''s evidence was likely to

proceed as the presence of the accused was not secured. He was thus not before the Court. It is only after his plea was recorded that the

complainant had to lead evidence in the case. In those circumstances, it was essential to adjourn the case suo motu to some other date and not

hasten to pass such an order in the case. Even the proviso to Section 247 of the Code further gives wide discretion to dispense with the personal

attendance of the complainant, if he thinks or is of opinion that it was not so necessary. This was, therefore, a very fit case, where he could have

dispensed with his presence on the ground that the accused was not before the Court. The learned Magistrate has not, therefore, applied his mind

to the provisions and if they were properly considered, I feel no doubt that he would have refrained from passing such an order on the

complainant''s absence on that day in Court. This has clearly resulted in miscarriage of justice and the order is, therefore, liable to be set aside. The

case shall, therefore be sent back to the learned Magistrate for proceeding further in accordance with law.

The order of acquittal passed against the accused in the case is hereby set aside and the case is sent back to the trial Court for proceeding

further in accordance with law.