V.N. Soral vs Mohan Poonamia Jain and Another

P.D. Kudal, J.—As common questions of law are involved in both these, appeals, they are being disposed of by this single judgment.

The relevant facts, in brief, are that two complaints u/s 27 of the Industrial Disputes Act were filed by the complainant V.N. Soral against Mohan Poonamia and Prem Kishan on 11-1-1968. On 12-1-1968 after recording the statement of the complainant, notices were ordered to be issued to the accused persons. The final order dated is 7-5-1971. Since 12-1-1968 the complaints could not proceed on account of one reason or the other. On 75 71 the complainant and his counsel were absent when the case was called for hearing. The accused persons were also absent. No witness on behalf of the complainant was persons. The learned Magistrate, therefore dismissed both the complaints u/s 247 Cr. PC. (old), and acquitted the accused persons as these were summons trial cases. The complainant there upon these appeals after obtaining the leave as envisaged u/s 417(3) Cr PC.

It was contended on behalf of the complainant-appellants that the learned trial Magistrate did not exercise the discretion judiciously in dismissed the complaints. It was also contended that in these summons trials the augment of the accused persons had not been recorded u/s 342 CrPC, and under circumstances, even if the complainant was absent there was no occasion or the learned trial Court to have dismissed the complaints u/s 247, GTPC It was thus, contended that the discretion so vested in the trial Court has been used capriciously, not in a judicial manner.

On behalf of the accused respondents, it was contended that the complainant and his counsel were absent and that there was no option left with the trial Court but to dismiss the complaints, as neither she prosecution witnesses were present, nor the complaint or his counsel, and that no request was made before the Trail court for adjourning the case on account of the absence of the complainant.

The contention of the learned Counsel for the parties have been considered, and the record of the case perused. From the perusal of the record, it is evidently clear that the complainant did turn up on the came day, and filed in affidavit to the effect that he appeared before the trial court at 10.50 a.m., and that the complaint had been dismissed prior to this.

The proviso to Section 247 CrPC (old) reads as follows:

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 learned Counsel for the appellant contended that the discretion so vested in the Magistrate in view of this proviso has not been judiciously exercised. In C.R. Alwares Vs. Habool and Another, it has been-held that before acquitting the accused, on the default of the complainant it is the duty of the Magistrate to see whether the personal attendance of the complainant is necessary on that date. When the complainant has finished all his evidence, where the evidence of the accused is proceeding arid where the complaint''s counsel is also present, it is not a sound judicial discretion of the court to dismiss the case of the complainant and acquit the accused without taking it into consideration whether the presence of the complainant is necessary.

In the State v. Riyasati Praksshan and Ors. 1963 ILR Raj. 161, it has been held that under the proviso to Section 247 Criminal Procedure Code, it is the duty of Magistrate to exercise his discretion in a judicial manner and in cases where the after dance of the complainant is considered necessary and be fails to appear, he has to dismiss the cases under that Section. However, in cases where the attendance of the complainant should in the exercise of the Magistrate''s discretion, be dispensed wish it is his duty to do so and in such cases if he proceeds to dismiss the complaint the decision cannot be held to be proper.

In JohriSal v. Rimjilal 1964 RLW 418, it has been held that Section 247, Cr.P.C. is not intended to serve as a shout cut for the trial Courts to dismiss cases by snap judgments. The power to dismiss the case is undoubtedly there when the complainant in a case instituted on a complaint is absent in a summons case, but the power must be judicially exercised; and it must be seen and considered having regard to the circumstances of given case whether the presence of the complaint was essential on the date to proceed with the case or it could be dispensed with.

In Municipal Council, Jaipur v Remeshwarlal 1968 RLW 211 it has been held that the power to dismissed complain u/s 247, Cr.P.C. should be exercised judiciously. In Kumbhar Dhulabhai Kalubhai Vs. Patel Ganeshbhai Fulabhai and Another, , it was held that in view of Sections 242, 243 & 244 of Criminal P.C. 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 after his plea is recorded in respect of the allegations leveler against him in the care. It is then that be 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.

In these two cases, though the complaint was filed as early as on 11/1/1988 the plea of the accused-persons had not been recorded till 7/5/1971. The cases went on being adjourned on one ground or the other, either on the request of the complainant or on the request of the counsel for the accused. The statement of the accused persons had not been recorded u/s 342, Cr. P.C. Under these circumstances it cannot be said that even if the complainant was present on 7-5-1971, the case could not have been proceeded with. The learned trial Court ought to have exercised its dioecism in judicious manner. A bare perusal of the order would show that the learned Magistrate wanted to get rid of these complaints when he observed that there cases have been pending for two or three years with no progress. The dismissal of these complaints, under these circumstanced, cannot be, but capricious and arbitrary. The order of acquittal, recorded by the learned trial Court u/s 247, Cr. P.C., therefore, deserved to be set aside.

The other important aspect, which has to be examined, is whether after the lapse of this much of time, the case should be remanded to the learned Magistrate for further bearing. The complaints wife instituted at early as 11-1-68 and were dismissed due to the absence of the complaint on 7-5-1971. The complaints were u/s 27 of the Industrial Disputes Act on the allegations that there was certain exhortation to the workmen to go on strike.

In Municipal Council, Jaipur v. Rameshewarlal 1968 RLW Raj. 211, It was held that where the trial bad already prolonged and the accused has been harassed by numerous adjournments the Courts may refuse to set aside acquittal. In The State of Bihar Vs. Hiralal Kejriwal and Another, , it was held that in the circumstances, the Supreme Court would be justified in not exercising its discretionary jurisdiction under Article 136 as public interest did not require that stale matter should be resuscitated In State of Bihar v. Kripa Shankir AIR 1971 S.C. 304, if has been held that where the High Court had wrongly set aside a convictions u/s 29, Industrial Disputes Act for committing a breach of settlement, the Supreme Court refused to interfere with that order under Article 136 in view of the fact that all disputes between the parties had been settled afresh and the workman concerned had been reinstated Public interest does not require that a stale matter should be resuscitated.

In view of the circumstances narrated above, though, the order of acquittal recorded by the learned trial Magistrate was not legally sound, there does not appear to be sufficient reasons for interference with the order, as the matter has become stale, and public interest does not require such an interference at such a belated stage. Therefore, it appears expedient and necessary in the interests of justice to decline to interfere with the order of the acquittal.

For the reasons stated above, the appeals are accordingly dismissed.