The State of Haryana vs Mansa Ram

Gurudev Singh, J.—This appeal by the State of Haryana is directed against the order of Shri Ram Saran Dass Bhatia, Judicial Magistrate First Class, Ambala City, dated 30th May, 1969, whereby he dismissed the complaint against the respondent who was prosecuted u/s 12(1) of the Punjab New Capital (Periphery) Control Act, 1952, solely on the ground that the complainant was absent. The date on which the complaint was dismissed was fixed for the appearance of the accused. Though the accused appeared, the complainant, who in this case was Director, Town and Country Planning and Deputy Commissioner (Periphery), Chandigarh, happened to be absent. The Public Prosecutor Mr. Balbir Singti, however, represented him. The learned Magistrate dismissed the complainant by his order, which reads thus:

Complainant not present. No exemption applied for. Complaint is dismissed in default of the appearance of the complainant. File.

The learned Assistant Advocate-General Mr. H.N. Mehtani appearing for the State urges that the learned Magistrate should have applied his mind to see if he should grant exemption of appearance to the complainant even if there was no written, prayer before him and when the complainant was represented by the Public Prosecutor, and that the dismissal of the complaint, which had been preferred by a busy public servant, on the day which was fixed for the appearance of the accused was neither warranted by the provisions of Section 247. Criminal Procedure Code nor justified by the circumstances of the case. In this connection, he has placed reliance upon the Division Bench decision of this Court in The State Vs. Gurdial Singh Gill and Others, to which one of us was a party. On adverting to the provisions of Section 247, Criminal Procedure Code, under which the Magistrate in the instant case has acted, and after considering the case law on the Point the Division Bench ruled that the Magistrates dealing with the summons cases are not to dismiss a complaint merely because the complainant happens to be absent, but they should apply their mind to the facts of each case and In fit cases dispense with the attendance of a complainant and proceed with the trial so that justice be done to the parties. Dealing with Section 247 of the Code of Criminal Procedure, it was further observed as follows:

The object of this provision of law is to prevent the complainant being dilatory in the prosecution of his case, but it nowhere lays down that in all cases, where the complainant is found to be absent on the date of hearing, the case has to be dismissed. On the other hand, it vests discretion in the Magistrate to adjourn the hearing of the case to some other date, or to proceed with the case even if the complainant is not present at the trial of a summons case.

In that case the complaint which was dismissed had been instituted by the Registrar of Companies and adverting to this fact it was observed:

In cases like the present when the complaint has been filed by a responsible Head of the Department like the Registrar of Companies who cannot be expected to attend each and every case filed in his name, the power to dispense with the attendance of the complainant should be freely exercised by the Courts as his absence at the date of hearing is not likely to prejudice the fair trial. If at any stage of the trial the Courts deem the presence of the complainant necessary, there is nothing to debar them from ordering the complainant to be present at a particular hearing, but to insist that a busy public servant who has multifarious duties to discharge should attend each and every complaint filed in his name would result in delaying the proceedings and would certainly be not in the interest of Justice.

These observations are fully applicable to the facts of the case which is now before us.

It may be reiterated here as was observed by Mosley J. in U Tin Maung v. The King AIR 1941 Ran 202 : (1941) CriLJ 801 that though Section 247 lays down the general principle that an accused in a summons case is entitled to acquittal if the complainant is absent without sufficient cause, yet the section itself, and the proviso attached to it, indicate beyond any manner of doubt that the Magistrate has a discretion in proper cases to adjourn the hearing, or to proceed with the case, by exempting the complainant public servant from appearance.

These conclusions have further been strengthened by amendment of the proviso to Section 247 of the Code of Criminal Procedure, effected by Act 26 of 1955, which reads thus:

Provided that where the Magistrate is, of opinion that the personal attendance of the complainant is not necessary, tine Magistrate may dispense with his attendance, and proceed with the case.

By this amendment the 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 notwithstanding 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 in Prabh Dayal Gobind Ram Vs. R. Mudgil, A.S.M., and also approved 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. We, accordingly, set it aside and accepting the appeal remand the case to the Magistrate for trial in accordance with law.

Before parting we would like to observe that the offence for which the respondent is being prosecuted is a petty one and quite a long time'' has elapsed since he was prosecuted. It will be open to the State to consider whether it is in the interest of the State to continue the prosecution or to come to terms with him if that is legally permissible. If the State decides to proceed with the trial, the Magistrate shall expedite the same and conclude it within two months.

Gurnam Singh, J.

I agree.