Gyanendra Kumar, J.
1. The applicant was prosecuted under Section 21 read with Section 4(1) of the Mines and Minerals (Regulation and Development) Act, 1957 on a complaint D/- 13-8-1964 hide by the District Magistrate of Allahabad charging the accused of excavating and carrying away silica (glass) sand from a specified area on 26-8-64 without any authority, permission or license, in contravention of Section 4(1) of the said Act, The case was registered on 7-9-1964 and notice was issued to the accused, who appeared before the trying Magistrate on 21-10-1964. It was admittedly a summons case. Under the provisions of Section 242, Criminal P.C. the accused should have been questioned forthwith as to why he should not be convicted, when he had appeared on 21-10-1964 before the Magistrate for the first time, but this was not done. The District Magistrate, who was the complainant, was not present. Hence the complaint was liable to be dismissed and the accused acquitted on that very day as provided by Section 247, Criminal P.C. Nevertheless, the Magistrate for no ostensible reason, adjourned the hearing to 28-10-1964 for recording the statement of the accused without any application on his behalf for postponement of the case for recording his statement on some other date.
On 28-10-1964 the complainant, District Magistrate, was again absent but the statement of the accused was recorded and he pleaded not guilty. Therefore, the case was directed to be listed on 11-11-1964 for production of prosecution evidence. On 11-11-1964 also the accused was present, but the complainant or the A. P. P. was not present. No application was made by either of them for the adjournment of the case, nor did the accused make any such request. Yet for no rhyme or reason, the Magistrate chose to adjourn the case to 3-12-1964 for leading the prosecution evidence. When the case camp up for hearing on 3-12-1964, the complainant (District Magistrate) was again absent though the A. P. P. was present. However, he did not adduce any evidence on behalf of the prosecution, nor applied for the adjournment of the case. On the other hand, the accused made an application saying that the complainant had been absent on all the dates, hence the complaint be dismissed, as provided by Section 247 of the Code of Criminal Procedure. In that application the accused had also quoted a Division Bench ruling of this Court in State v. Reva Chand 1960 All. L. J. 884 : : AIR1961All352 .
However, the learned Magistrate instead of dismissing the complaint in the absence of the complainant as welt as for want of prosecution evidence, dismissed the application of the accused by a curious order dated 3-12-1964 containing incorrect facts any adjourned the hearing to 21-12-1964 without any adequate reason. Aggrieved by the aforesaid order of the Magistrate dated 3-12-1964 the accused went up in revision before the Sessions Judge. But the learned Sessions Judge, by a very cryptic order; dismissed the revision summarily, without considering the provisions of Section 247, Cr. P.C. or the Division Bench case of Reva Chand which had also been quoted in the order of the trying Magistrate. Hence this revision by the accused.
2. In the first place the Magistrate had wrongly stated in his order that date (3-12-1964) was filed for appearance of the accused, as a matter of fact the accused had already put in his appearance on 21-10-1964. He again attended the court on 28-10-1964 when his statement was recorded, then on 11-11-1964 when the case was adjourned without any reason whatsoever and lastly on 3-12-1964. But even if 3-12-1964 had been appointed for the appearance of the accused (which is not at all the case here) the Magistrate should have dismissed the complaint and acquitted the accused, on the failure of the complainant to put in appearance.
3. In the second place the Magistrate misquoted the opening words of Section 247 of the Code of Criminal Procedure when he stated.
If the summons 'have' been issued to the 'complainant,' and 'on' 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 herein before contained acquit the accused, unless for some 'reasons' he thinks proper to adjourn the hearing of the ease to some other day.
I have underlined (here into ) the words which have wrongly been quoted by the Magistrate Section 247 does not at all provide for issue of summons or conveyance of information to the complainant regarding the date fixed in the case. Yet the trying Magistrate misreading the opening words of Section 247, thought it necessary to inform the complainant regarding the adjourned date because ''no information of today's hearing had been seat to the complainant and as such before further proceeding with this case I deem it proper to inform the District Magistrate. Allahabad to obtain necessary exemption from personal attendance and may authorise D. G. C.(Criminal) or A. P. P. whomsoever he desires to appear on his behalf in this case. Therefore, I think it proper to adjourn the hearing of this case on (to) December 21. 1964 and the District Magistrate, Allahabad, will be informed of this date. He can make an application through D. G. C. (Criminal) or the A. P. P. if he so desire. The application of the accused is rejected.
4. It is noteworthy that the District Magistrate who was the complainant, had not sought exemption from his personal attendance and although under Section 247, Cr. P.C. the Magistrate was entitled suo motu to dispense with the attendance of the complainant and proceed with the case, yet in this particular case the Magistrate did not consider it fit to do so. Acting as a court, the trial Magistrate had no business to advise the complainant District Magistrate to seek exemption from personal attendance and authorise the D. G. C. (Criminal) or A. P. P, whomever be considered proper to appear on his behalf. Justice should not only be done, but also appear to be done, according to law, irrespective of personalities It is the duty of the complainant to prosecute his case diligently without being invited to do so.
5. As a complainant, the District Magistrate is not in any privileged position. In a summons case he has to be present on every date of hearing or else he must seek exemption from personal attendance from the court concerned. It is equally open to the trying Magistrate suo motu to exempt the attendance of the District Magistrate or any other public servant from attending his court in suitable cases. But in the instant case neither the District Magistrate sought exemption of his attendance nor did the trial Magistrate suo motu grant such exemption. Under the circumstances the trial court was bound to dismiss the complaint and acquit the accused, as there was no legal or appropriate reason to adjourn the case.
6. Before me the Learned Counsel for the State has relied upon the following observations of Mulla, J. in Lala Dhanpat Rai v. State : AIR1959All425 :
It cannot be denied that the District Magistrate, Lucknow is not only a public servant but a very busy public servant. The Legislature never contemplated that the District Magistrate should dance attendance upon Courts of Magistrate, who are his subordinates, when prosecutions are launched under those offences which he alone under the law is entitled to prosecute, It would lead to absurd and ridiculous results if the absence of the District Magistrate is to be treated as the absence of the complainant within the meaning of Section 247, Cr. P. C.
7. The above case was pointedly dissented from by a Division Bench of this Court in : AIR1961All352 , which was cited before the trial Magistrate, but he conveniently omitted to consider the following observations of their Lordships:
With great respect to the learned single Judge, we are unable to agree that in cases where the District Magistrate was the complainant he could absent himself without the order of the Court dispensing with his attendance. It may be that in such cases the Magistrate will ordinarily dispense with his attendance, but an application should be made on his behalf by the Public Prosecutor and upon the application being presented and then and only then he can remain absent.
When the District Magistrate goes as a complainant, he does not go as a superior of the Magistrate and therefore, we do not think that his presence in Court can be termed as 'dancing attendance upon the Courts of Magistrate. It is either for the Legislature to amend the rule, so that in eases where the complainant is a public officer, he should not be present, or, in our view, he should have applied to the Court. We are unable to see how, when Section 247 is read, it can be said that the Legislature never intended the attendance of the District Magistrate complainant or any other public servant complainant.
Under these circumstances we think that, as in the present case, the attendance of the District Magistrate was not dispensed with, the Magistrate had only two alternatives left; either to acquit the accused) or to adjourn for sufficient reason. It appears that there had been no less than ten adjournments of the case on account of the default of the prosecution in producing the witnesses....
8. Their Lordships had further emphasized the fact that the mere appearance of the Public Prosecutor would not be deemed to be the appearance of the District Magistrate or any other Public officer where he is a complainant.
9. In the instant case the District Magistrate (Complainant) had not cared to attend the Court of the trying Magistrate either on 21-10-1964, 28-10-1964, 11-11-1964 or 3-12-1964. On 11-11-1964 even the A. P. P. was not present nor was the prosecution evidence ready nor was any application made for adjournment of the case. Similar was the position on 3-12-1964, except that the A. P. P. was physically present, but neither the District Magistrate (complainant) had cared to attend the Court nor was any prosecution evidence ready even on that date. In view of the fact that the trying Magistrate himself had not deemed it proper to exempt the attendance of the District Magistrate (complainant), the only course open for him was to dismiss the complaint and acquit the accused under Section 247, Criminal P.C. or else to adjourn the heating for sufficient and adequate reason. Tendering of unsought for advice by the trying Magistrate to the District Magistrate, who was no better than any other complainant to instruct the D. G. C, or A. P. P. to apply for his exemption and to adjourn the case just to convey this information to the District Magistrate could not be considered to be a legal or adequate reason for postponement of the case, within the meaning of Section 247, Criminal P.C. By 3-12-1964 the accused had already appeared before the trying Magistrate on as many as four hearings, entailing expense, botheration and loss of business. The charge was of a petty nature where he was alleged to have removed some silica sand on one single day i.e. on 26.6-1964. Therefore the impugned order of the Magistrate was wholly unjustified and wrong.
10. The Learned Counsel for the State has drawn my attention to a Single Judge decision of this Court in Prem Nath Khanna v. Chief Inspector, Factories, Kanpur 1963 All L J 989 where it was laid down by Mr. Justice Misra that where a complaint had been filed by a particular public servant,
as required by law, but his role may be only of a formal nature and even though he signs the com-plaint 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 this class of cases 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, Criminal P.C. provides that the Magistrate instead of acquitting the accused may adjourn the case to another date for reason 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.
In Prem Nath Khanna's case the Magistrate had suo motu exempted (at least impliedly) the personal attendance of the complainant who was the Chief Inspector of Factories, U. P. and had chosen to proceed with the case on merits. In the instant case the Magistrate did not consider it proper to exempt the attendance of the District Magistrate suo motu but only advised him to apply for the same through the D. G. C. (Criminal) or the A. P. P. In other words, the Magistrate had not considered the instant case to be one in which he should have himself taken the initiative to exempt the personal attendance of the complainant but was of the view that if and when an application for such exemption was filed on behalf of the complainant he would consider it on merits.
11. On revision the learned Sessions Judge summarily rejected the same erroneously as he thought 'nothing perverse or illegal appears to have been done' although the order of the Magistrate bristles with illegalities and even perversity, inasmuch as it not only contains a wrong narration of facts but also misquotation of Section 247, Criminal P. C.
12. In the result, I allow the revision, dismiss the complaint and acquit the accused under Section 247, Criminal P. C.