Municipal Board Jahangirabad vs Jamshed Ali Khan

G.D. Srivastava, J.—This appeal has been filed by the Municipal Board, Jahangirabad of district Bulandshahar against the order of dismissal of the complaint u/s 247 Code of Criminal Procedure passed by Tahsildar-Magistrate, Anupshahar.

Jamshed Ali was being prosecuted in the Court of the Tahsildar-Magistrate under Sections 178 and 186 of the Municipalities Act. On 8-6-1972, the complainant was absent. On behalf of Jamshed Ali an application was moved that the complaint should be dismissed u/s 247 Code of Criminal Procedure (Old) on account of the absence of the complainant. The Magistrate observed in his order that the complainant was not present. He, therefore, dismissed the complaint in default and ordered the accused to be acquitted. Jamshed Ali is now dead, and Iqbal Ahmad has been substituted in his place.

This order of acquittal has been challenged before me on the ground that an application had been moved on 6-4- 1970 for exemption of the complainant''s personal presence. On this application there is only a note ''K.O.F.'' which probably means keep on file. It was argued that without disposing of this application, it was not proper to dismiss the complaint for default. It may not be proper to dismiss the complaint in these circumstances, but the question is whether the order of dismissal can be said to be illegal. Merely by moving an application for exemption, the complainant is not entitled to presume that his personal presence has been exempted. Unless exemption is allowed, the complainant has to be present and if he fails to be present, the complaint has to be dismissed in default u/s 247 Code of Criminal Procedure. My attention was also drawn to a typed application dated 8-6-1972 in which there is the prayer by some official of the Municipal Board that his personal presence should be excused and that on his behalf one Banarsi Das Sharma would do the Pairvi. The Magistrate noted down on this application that it had been produced after arguments and it, therefore, had no force. From this application it was sought to be inferred that the complainant was present. I do not think that any such inference can be drawn from this application. There is nothing else on record to show that the complainant was present, and in the grounds of appeal also it has not been said that the complaint was dismissed for default inspite of the presence of the complainant. There is, therefore, no legal error in the order passed by the Magistrate.

In the result, the appeal is dismissed.