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State of Orissa Vs. Birendra Kishore Sahu - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Case NumberGovt. Appeal No. 25 of 1963
Judge
Reported inAIR1964Ori231; 29(1963)CLT657; 1964CriLJ565
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 247
AppellantState of Orissa
RespondentBirendra Kishore Sahu
Appellant AdvocateStanding Counsel
Respondent AdvocateS.C. Mohapatra, Adv.
Cases ReferredState v. Reva Chand
Excerpt:
.....may take cognizance of an offence even without formally examining the complainant on oath, and may proceed to summon the accused barely on the report of the public servant......of the respondent.3. learned standing counsel contended that in a case of this nature where a public servant happens to be the complainant, the law enjoins that he should be informed of the date of hearing and since no such intimation was given to him the complainant-inspector could not be aware of the date of hearing and thus could not present himself when the case was called out he argued that in such a situation, the magistrate was not justified in acquitting the accused under section 247, cr. p.c.4. the position of a public servant is slightly different from that of a private complainant cannot be doubted in view of section 200 of the code of cr. procedure. under that section though it is obligatory on the magistrate to examine the complainant on oath, he is not bound to do so.....
Judgment:

R.K. Das, J.

1. This is an appeal by the State of Orissa against an order dated 9-2-63 passed by the Sub-Divisional Magistrate, Athgarh, acquitting the respondent under Section 247, Cr. P.C., on account of the absence of the complainant on the date of hearing.

2. The Inspector of Supplies, Athgarh, filed a prosecution report against the respondent alleging that he had contravened Section 8 of the Rice Milling Industry (Regulation) Act, 1958, for having installed a Hullar without obtaining prior licence for the same, and had thus made himself liable under Section 13 of the said Act. This report was received by the Sub-Divisional Magistrate on 1-12-1962 and cognizance of the offence was taken on 10-12-1962, and the accused was summoned to appear on 5-1-1963 to stand his trial. As the service return was not been by 5-1-1963, the case was reposted to 23-1-1963 on which date the accused appeared. The substance of the accusation was explained to him and the accused pleaded not guilty and claimed to be tried. The case was then posted to 9-2-1963 for evidence.

On 9-2-1963 the accused and one of the prosecution witnesses were present, but as the Inspector of Supplies who filed the complaint, was found absent the Magistrate acquitted the accused under Section 247, Cr. P.C., Sometime after the recording of order under Section 247 the complainant-inspector appeared in court and filed an application for restoration on the ground that his non-attendance was due to reason, that he did not receive any summons regarding the above date. The learned Magistrate, however, rejected the petition on the ground that he had no power to restore the case as the order of aquittal had already been passed. It is against the order of rejection of the learned Magistrate the State has filed this appeal for setting aside the order of acquittal of the respondent.

3. Learned Standing Counsel contended that in a case of this nature where a public servant happens to be the complainant, the law enjoins that he should be informed of the date of hearing and since no such intimation was given to him the complainant-inspector could not be aware of the date of hearing and thus could not present himself when the case was called out He argued that in such a situation, the Magistrate was not justified in acquitting the accused under Section 247, Cr. P.C.

4. The position of a public servant is slightly different from that of a private complainant cannot be doubted in view of Section 200 of the Code of Cr. Procedure. Under that Section though it is obligatory on the Magistrate to examine the complainant on oath, he is not bound to do so in case of a public servant as would appear from proviso (aa) of that Section which runs as follows :

'When the complaint is made in writing nothing herein contained shall be deemed to require the examination of a complainant in any case in which the complaint has been made by a Court or by a public servant acting or purporting to act in the discharge of his official duties.' Thus, the law clearly contemplates that a Magistrate may take cognizance of an offence even without formally examining the complainant on oath, and may proceed to summon the accused barely on the report of the public servant. In fact, there may be a variety of cases where a public servant may have to file a complaint in course of his official duty, and the Court may have to take action on such reports treating the same as 'complaints' within the meaning of Section 4(1)(h) of the Cr. P.C.

The question that next arises is that if on such reports cognizance could be taken even without the presence of the public servant in the court, then how would such a public servant be aware about the date of hearing of the case so as to be present in the Court at the time when his presence is required for purposes of giving evidence. In such a situation, it may reasonably be urged that the complainant, when he is a public servant has to be summoned line any other witness and informed about the date of hearing of the case. In a case of this Court reported in State of Orissa v. M. V. Appa Rao, 26 Cut LT 658 : (1961 (2) Cri LJ 518) it was held that in a case filed at the instance of a public servant, it is obligatory on the Magistrate to inform the complainant about the date of hearing.

In the present case, it appears from the records that though the summons were issued from the Court on 25-1-63 and were received in the office of the S. D. O. under whom the complainant was working, on 1-2-1963, it could not be served upon the complainant even until the date of hearing. It is not very clear from the records as to why service of summons could not be effected during this long period. It appears from the petition filed by the complainant on 9-2-1963 that he returned from his tour at 3.30 p.m. on that very day and came to know that the accused had been acquitted under Section 247 Cr. P.C and that he was not served with any summons, not was he aware of the date of hearing and accordingly he made an application for restoration which, as stated above, was rejected by the learned Magistrate. In view of this position, it cannot be disputed that the complainant was in fact not aware of the date of hearing and was thus, unable to attend the Court.

That the prosecution was diligent would also appear from the fact that Krupasindhu Mohapatra the only witness named in the prosecution report was duly summoned and, was present in court on the date of hearing. The only possible reason for which the complainant could not be present was that he was not aware of the date of hearing. It is not clear from the records whether the public prosecutor or any other counsel was appointed in this case, it appears that the case was left to its own fate. Under Section 247 Cr. P.C., however, it was open to the Magistrate to dispense with the personal attendance of the complainant, if in his opinion, his attendance was not necessary for the purposes of this case. Here, however, as appears from the order-sheet, the Magistrate was of the opinion that the personal attendance of the complainant was necessary and due to his absence he acquitted the accused. But once it is held that the public servant is entitled to notice about the date of hearing, and to notice was in fact received by him, the order of acquittal must be held to be wrong.

5. It was contended by Mr. Mohapatra, learned counsel for the respondent, that once the complainant had notice of the fact that cognizance was taken and the case was fixed to a particular date, it was for the complainant to take steps for his appearance and no further notice was necessary for his appearance in the Court at the time of hearing. No doubt, there is a great force in this contention. It is not the duty of the Court to bring, to the notice of the complainant about every date of hearing. It is not expected of a complainant to behave indifferently to the further proceeding in a case after filing the complaint, just because he happened to be a public servant. In fact, so far as Section 247 Cr. P.C. is concerned, the law makes no difference between a private complainant or where the complainant is a public servant. It is in every case that a complainant has to be diligent about the progress of the case from time to time.

In the present case, however, there is nothing to show that the complainant inspector was even aware of the fact that cognizance in the case had been taken on his report. He only came to know of the acquittal on 9-2-63, the date on which the order under Section 247, Cr. P.C. was passed. There is nothing to show that the complainant was aware of the progress of the case before 9-2-63. Thus, the contention of the learned counsel for the respondent that the complainant was aware of the fact that cognizance on his report had been taken is without any basis, and cannot be accepted.

6. Mr. Mohapatra further contended, on the authority of a case reported in State v. Reva Chand, AIR 1961 All 352, that this being a petty offence, this court should not interfere in appeal against an order of acquittal, is It would mean unnecessary harassment to the accused. But the facts of that case were entirely different.

There the case was adjourned for a large number ofdates and no witnesses were present and the State Counsel wanted adjournments from time to time and in suchcircumstances, their Lordships held that the High Courtshould not interfere in an appeal against an acquittal ina petty matter, where the prosecution is grossly negligent in not presenting the witnesses on several dates andthus dragged the case for a long time and thereby causingharassment to the accused. But in the present case9-2-63 was the first and the only date fixed for evidenceand accordingly summonses were issued both to the complainant and the prosecution witness Krupasindhu Mohapatra who alone received the summons and was present inthe Court. Since the summons was not served on thecomplainant he could not be present. Therefore it cannot be said that there was any default on the part of thecomplainant, nor could it be said that he was grossly negligent in conducting the case.

No doubt, there may be cases, where a public servant, after filing the complaint was not diligent aboutthe disposal of the case, causing unnecessary harassment to the accused. But in the instant case, as alreadystated, there is nothing to show that the complainantwas negligent or deliberately avoided to receive, the summons. He was not even aware of the date of hearingand when he came to know about the order under Section 247,Cr. P.C. he immediately requested the Court to restorethe case and to proceed with its hearing. In view of thisposition 1 would set aside the order of acquittal passedby the learned Magistrate and direct that the case shouldnow proceed in accordance with law, on the file of theSub-Divisional Magistrate of Athgarh.


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