(1) On the date on which the Magistrate acquitted the accused under Section 247 Cr. P. C., the Pleader for the complainant had sent a letter addressed to the Magistrate, in which he had pleaded his inability to be present on that date as he was suffering from Malaria, and had prayed that his cases be adjourned. It would appear that adjournments were granted by the Magistrate in some of the other case of the pleader on the strength of this letter. But in this case, the complainant having been absent, the learned Magistrate acquitted the accused under the provisions of Section 247 Cr. P. C. The question which now arises for determination is as to whether in view of the letter which the Pleader has written under sub-Section (2) of Section 14 of the Bombay Pleaders' Act 1920, the acquittal by the learned Magistrate ought to be interfered with by this Court in appeal.
(2) Sri Datar, the learned Counsel appearing for the appellant has pointed out that under sub-Section (2) of Section 14 of the Bombay Pleaders' Act. When the indisposition of the Pleader has been notified to the Court, the proceedings should be stayed. On the other hand, Sri Gunjal who is appearing for the respondent has urged that when the complainant does not appear the Magistrate should under Section 247 Cr. P. C., acquit the accused unless for some reason the Magistrate thinks it proper to adjourn the hearing of the case to some other date. The contention of Sri Datar is that those two provisions have got to be harmoniously construed and that consequently the Magistrate should have stayed the proceedings in the case, under sub-Section(2) of Section 14 of the Bombay Pleaders' Act.
(3) After hearing the learned Advocate, we are satisfied, for the reasons which will be stated presently, that this is not a case in which we should interfere with the order of acquittal passed by the learned Magistrate. It is no doubt true that in sub-Section(2) of Section 14 of the Bombay Pleaders' Act it is stated that on the Pleader notifying the Court about his indisposition, the proceedings shall be stayed.
Sub-Section (2) really enacts a rule for the convenience of indisposed pleaders. Section 247 of the Code of Criminal Procedure requires the Magistrate to acquit the accused, if the complainant does not appear on the date of hearing, unless the Magistrate thinks it proper to adjourn the hearing of the case to some other date. Therefore, unless the Magistrate for some good reason adjourns the hearing of the case to some other date, the accused will be entitled to an acquittal, consequent on the non-appearance of the complainant on the date of hearing.
This right which is available to an accused person, is not dependent on the appearance or non-appearance of the complainant's pleader. It appears to us that in the event of a conflict, sub-Section(2) of Section 14 of the Bombay Pleaders' Act, will have to yield to Section 247 Cr. P. C.; because, the right which would be available to an accused person under Section 247 Cr. P. C. Cannot be allowed to be whittled down by a provision intended only for the convenience of an indisposed pleader and not to exempt the complainant from appearance.
(4) The difficulty which has arisen in the present case has been brought about solely by reason of the fact that the complainant failed to appear on the date of the hearing. If he had so appeared, then under, Section 247 Cr. P. C. And the Magistrate would have been bound to adjourn the case under sub-Section(2) of Section 14 of the Bombay Pleaders' Act. Further, it does not appear that any attempt had been made in the present case, by or on behalf of the complainant, to invoke the discretion of the Magistrate under the proviso to Section 247 Cr. P. C. in the matter of dispensing with the complainant's attendance. Under these circumstances, we consider, that the acquittal by the learned Magistrate should not be disturbed. Hence the appeal fails and is dismissed.
Mir Iqbal Hussain, J.
(5) I agree.
(6) Appeal dismissed.