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Prem Nath Khanna Vs. Chief Inspector - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Judge
Reported in1964CriLJ87
AppellantPrem Nath Khanna
RespondentChief Inspector
Excerpt:
- - 3. aggrieved by the order of the magistrate the applicant filed revision petitions in both the cases before the sessions court, which proved unsuccessful. in these class of cases, as illustrated above, and the like, the dismissal of the complaint and acquittal of the accused merely on the ground of non-appearance of the complainant would defeat the very ends of justice......be acquitted in accordance with the provisions of section 247 code of criminal procedure. the learned magistrate rejected these applications.3. aggrieved by the order of the magistrate the applicant filed revision petitions in both the cases before the sessions court, which proved unsuccessful. he has, therefore, filed these two revision petitions in this court.4. i have heard sri g. h. naqvi who has appeared in support of these revision petitions.5. i am of opinion that the order passed by the learn- ed magistrate in both the cases refusing to acquit the applicant under section 247, cr.pc on the ground of non-appearance of the complainant on 21st august, 1961 or on the earlier dates of hearing, was not illegal and the magistrate was quite competent to dispense with the personal.....
Judgment:
ORDER

R.A. Misra, J.

1. The applicant, as also the point raised for decision, in both these revision petitions is the same and I, therefore, propose to dispose of them together.

2. On complaints filed by Sri M. Qizilbash, Chief Inspector of Factories, U. P., the applicant Sri Prem Nath Khanna is being prosecuted in two cases separately Under Section 92 of the U. P. Factories' Act, 1948 for The contravention of Rules 102 and 103 of the U. P. Factories' Rules, 1950. The cases proceeded for several hearings and eventually they were fixed for 21-8-1951. On that date the applicant applied in both the cases that since the complainant had not attended the Court on the previous hearings of the cases and he was absent on that date also, the complaints should be dismissed and the applicant should be acquitted in accordance with the provisions of Section 247 Code of Criminal Procedure. The learned Magistrate rejected these applications.

3. Aggrieved by the order of the Magistrate the applicant filed revision petitions in both the cases before the Sessions Court, which proved unsuccessful. He has, therefore, filed these two revision petitions in this Court.

4. I have heard Sri G. H. Naqvi who has appeared in support of these revision petitions.

5. I am of opinion that the order passed by the learn- ed Magistrate in both the cases refusing to acquit the applicant Under Section 247, Cr.PC on the ground of non-appearance of the complainant on 21st August, 1961 or on the earlier dates of hearing, was not illegal and the Magistrate was quite competent to dispense with the personal attendance of Sri Qizilbash and to proceed to hear the cases on merits.

6. Section 247, Code of Criminal Procedure which has been relied on behalf of the applicant, finds place in Chapter XX, Cr. P. Code, which governs the trial of summons cases, namely of petty offences punishable with not more than one year's rigorous imprisonment. The section reads:

If the suinmons has been issued on complaint, and upon the day 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:(Provided that where the Magistrate is of opinion that the personal attendance of the complainant is net necessary, the Magistrate may dispense with his attendance and proceed with; the case

7. To me it appears that the Section was enacted with a two fold object in view. Firstly it was intended that an unscrupulous complainant should not be allowed to harass an accused by filing a complaint of a petty offence and then by prolonging the trial by his absence at the hearing of the case. To achieve this object the Section provides that if on the date of the hearing of the case the complainant does not appear the Magistrate shall acquit the accused. However, there may be cases in which the non-appearance of the complainant may be due to honest and genuine reasons, or it may not be at all necessary for the complainant to be present on the hearing of the case. As for example a complainant may fall ill or may by sheer accident miss his train and for that reason he may not be able to attend the Court on the date of hearing.

There may be another class of cases in which on account of the provisions of some statute a complaint may be required to be instituted in the name of a corporate body. In such a case the complaint, though it will be in the name of the corporate body, will have to be signed by some one of it's officers and it is he who will attend at the hearings of the case. The presence of the complainant in this class of cases is completely out of question.

There may be still a third category of cases in which the complaint has to be filed by a particular public servant. Technically the signatory to the complaint will be that public servant, as required by law, but his role may be only of a formal nature and even though he signs the complaint he may know nothing personally about the facts of the case. His presence, therefore, on the hearings of the case is wholly unnecessary and would lead to waste of public time and money.

In these class of cases, as illustrated above, and the like, the dismissal of the complaint and acquittal of the accused merely on the ground of non-appearance of the complainant would defeat the very ends of justice. In order to avoid this unjust result the latter part of Section 247, Cr. P. Code provides that the Magistrate instead of acquitting the accused may adjourn the case to another date for reasons which he thinks proper. The proviso to the section vests in the Magistrate a still wider discretion that in proper cases where he thinks the presence of the complainant to be unnecessary, he may dispense with his attendance and proceed with the case.

8. On the interpretation put Dy me on Section 247, Cr. P. Code in my opinion it cannot be argued with any force that in a summons case if the complainant is absent at the hearing of the case, the Magistrate has no other option but to acquit the accused and he is deprivad of the discretion to adjourn the case for proper reason or to- dispense with personal attendance of the complainant even if he thinks his personal attendance unnecessary.

9. Referring to the facts of the present case, I find that the complainant Sri Qizilbash had applied in both the complaints as early as the date of the filing of the complaints that his personal attendance be dispensed weft because he was a public servant. It is true that no specific orders accepting the above prayer were passed by the learned Magistrate, but in view of the fact that the-learned Magistrate continued to hear the cases on several dates without insisting upon the personal attendance of Sri Qizilbash, it must be taken that the learned Magistrate impliedly adjourned the cases as he was authorised to do Under Section 247, Cr. P. Code. A further inference which follows from the above fact is that the learned Magistrate did not think the personal attendance of Sri Qizilbash to be necessary and for that reason impliedly lie should be deemed to have dispensed with his attendance under the proviso to Section 247, Code of Criminal Procedure.

10. The learned Counsel for the applicant has argued that if the Magistrate does not acquit the accused on ac count of the non-appearance of the complainant and chooses to adjourn the case to another date, he must record his reasons for that and since in this case the learned Magistrate has not recorded any reasons for adjourning the cases, he acted without jurisdiction in not dismissing the complaints and acquitting the applicant. The argument in my opinion is not correct because firstly the reasons on account of which the cases were adjourned from day to day ore re- corded in the order-sheets, and secondly I do not agree that it is obligatory on the Magistrate to record his reasons, if he adjourns }he case on account of the non-appearance of the complainant. The words used in the Section 247, Cr. P. Code, in their context are, 'unless for some reason he thinks proper to adjourn the hearing of the case to some other day'. It does not say, 'unless for some reason 'to be recorded1.'

The Section also does not provide that if the Magistrate thinks that the personal appearance of a complainant is not necessary and for that reason he dispenses with his personal attendance he must record this in writing. The mere fact that in proper cases the Magistrate does not insist upon the personal appearance of the complainant and chooses to proceed with the case from day to day without him can be taken to mean that he has exempted him from personal attendance.

11. Sri Qizilbash had filed the two complaints not in. his personal capacity, but only as an officer of the Government, in i compliance with the requirements of law. He was not xpected to give any kind of evidence in the case. His presence at the hearings of the case would be of no assistance to the Court and wholly unnecessary and it would, therefore, be Useless to insist upon his personal attendance in the cases. The learned Magistrate In my opinion, Rightly did not accede to the request of the applicant to djismiss the complaints and to acquit him on account of the non-appearance of Sri Qizilbash. I am further of opinion that the Magistrate was quite competent to dispense with the personal attendance of Sri Qizilbash retrospectively i and to proceed with the cases without him.

12. Lastly, the learned Counsel for the applicant has referred ;me to the cases State v. Reva Chand : AIR1961All352 and Jai Prakash v. State 1961 All W R (H C) 149 : AIR 19S1 All 377. None of these two decisions lay; down that in suitable cases the Magistrate may not exercise the discretion vested in him Under Section 247, Code of iCriminal Procedure to adjourn the case to another date, if the complainant is absent or to dispense with the personal i attendance of the complainant and to proceed without him if he considers his personal attendance unnecessary. In the present case, in my opinion, the procedure followed by the learned Magistrate was quite in conformity With the provisions of Section 247, Code of Criminal Procedures and calls for no interference.

13. In the result I find no force in these applications and I dismiss them. The stay order is vacated in both the; cases. The record of the two cases will be sent back to the trial Court for disposal according to law.


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