Sudhir Kumar Neogi and Another vs Emperor

Fazl Ali, J.—This case which is of a very trivial nature has a peculiar history. It appears that on 12th November 1940, the complainant, one Babu Phanindra Nath Chatterji, preferred a complaint u/s 352, Penal Code, against the petitioners. The Sub-Divisional Officer upon receiving this complaint and examining the complainant on oath recorded in the order-sheet that the complaint appeared to be exaggerated and sent it to a certain local pleader for enquiry and report. The report was that the case was substantially untrue, but notwithstanding this report the learned Magistrate sent it to one Mr. Section M. Sinha, for enquiry expressing the opinion that even if the case was true it should not be contested in the Court if the parties cared for their own dignity and status. It may be stated that before this order was passed a protest petition was filed on behalf of the complainant impugning the correctness of the report of the pleader to whom the case had been sent for enquiry in the first instance. As the parties did not compromise, the case was returned to the learned Magistrate who noted in the order sheet that it was useless to send the case for any further enquiry and settlement and that it should be decided in Court. Having noted this he summoned the petitioners. The petitioners were tried by a Magistrate holding third class powers who found them guilty u/s 352, Penal Code, and sentenced them to pay a fine of Rs. 25 each. The petitioners thereupon appealed to the District Magistrate who admitted the appeal on the question of sentence only, notwithstanding the fact that it has been pointed out in many cases by this Court that an appeal cannot be admitted only on a limited ground. The learned District Magistrate eventually maintained the conviction, but reduced the sentence of fine to Rs. 5.

The point which seems to me to be fatal to the conviction is that on 19th May 1941, which was one of the dates fixed for the hearing of the case, the complainant was not admittedly present in Court. Section 247, Criminal P.C., provides that in a summons case if on the date appointed 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. In this case the Magistrate did not adjourn the hearing of the case and therefore his only course was but to acquit the petitioners. It appears that on that date a petition was filed by the complainant for dispensing with his attendance and it has been stated in the affidavit which has been filed in this Court in support of this application that on the margin of the petition the word ''allowed'' was written not by the trying Magistrate but by some one whom the petitioners believe to be the peshkar of the Court. This allegation has not been controverted and the District Magistrate has not submitted any explanation of the Magistrate on that point. It is therefore to be presumed that the Magistrate did not consider this application. But even, if he may be taken to have considered it, it seems to me that on the terms of Section 247, as it stands, the only course which was open to the Magistrate was to acquit the accused or to adjourn the hearing of the case and not to proceed with the hearing. In my opinion the procedure adopted by the Magistrate was entirely illegal and u/s 247 he should have acquitted the petitioners. It is to be noticed that what the section provides, is that ordinarily the Magistrate shall acquit the accused, unless for some reason he thinks proper that the hearing should be adjourned. In my opinion this ground alone is sufficient to justify the quashing of the conviction. I therefore allow this application, set aside the conviction and sentence and direct that the fine, if paid, be refunded.