J.N. Kaushal, J.
1. This revision petition. was referred by me to a larger Bench because of conflict of judicial decisions and also because I thought that the view of Bhandari, C. J., in Daulat Ram v. Ram Kisban A I R 1958 Punj 317, required re-examination.
2. The facts are that Gurbax Singh respondent filed a complaint under Sections 448, 806, 804, 379 and 427, Indian Penal Code, against Banta Singh and Pal Singh alias Kirpal Singh and Chanan Singh. After recording preliminary evidence, the Magistrate summoned the accused to stand their trial under Sections 448, 427 and 504, Indian Penal Code, Chanan Singh accused after appearing in Court absented himself and proceedings had to be taken against him under Section 512 of the Code of Criminal Procedure. On 14-12-1964, after recording the evidence examined on behalf of the complainant the Magistrate framed a charge under Section 448, Indian Penal Code, against Banta Singh and Pal Singh. After the charge, the prosecution witnesses were further cross-examined by the accused and the case was adjourned to 27.8-1968. On that day, the statements of the accused had to be recorded under Section 342, Code of Criminal Procedure. The complainant, was however, absent on that day and the accused were present. The Magistrate passed the following order:
Tbe complainant is not present. It seems that be does not want to pursue the case. Therefore the complaint is dismissed in default of presence.
Gurbax Singh complainant was dissatisfied with this order and filed a revision petition which came for hearing before the Additional Sessions Judge, Amritsar. The learned Judge held that the impugned order which was passed by the Magistrate was illegal and bad in the eye of law. In his opinion, after the charge had been framed the Magistrate could not dismiss the case for default of appearance of the complainant. He characterised the order of dismissal as unknown to the Code of Criminal Procedure. The revision petition was accepted and the order passed by the learned Magistrate was set aside and the case was sent back to the Court of the Magistrate for disposal according to law. Banta Singh and Pal Singh accused have come to this Court in revision against the order passed by the Additional Sessions Judge, Amritsar.
3. According to Mr. Bhagat Singh Chawla, the learned Counsel for the petitioners, the order which was passed by the Magistrate on 27-3-1965, was an order of acquittal and should be deemed to have been passed under Section 247 of the Code of Criminal Procedure. The learned Counsel maintains that offence under Section 448 of the Indian Penal Code, under which a charge bad been framed against the petitioners, was triable as a summons case and although the Magistrate had tried the case as a warrant-case, the benefit of Section 247 of the Code of Criminal Procedure could not be denied to the petitioners. Reliance for this contention was placed on Venkatarama Iyer v. Sundaram Pillai A.I.R. 1923 Mad. 489 A.I.R. 1958 Punj. 817 and Bodu Ram v. Uda Ram I.L.R. (1963) 18 Raj. 683 : There is no doubt that these three Single Bench decisions support the contention of Mr. Chawla. A learned Single Judge of the Madhya Bharat High Court in Ratanlal Jagannath v. Haiku Deochand A.I.R. 1954 Madh B 2, has taken a contrary view.
4. After hearing the learned Counsel at length and examining the authorities cited and the various provisions of the Code of Criminal Procedure, we are of opinion that the view of law-taken by the Madhya Bharat High Court seems to be correct.
5. The Code of Criminal Procedure has laid down different procedures for the trial of summons-cases and warrant-cases. The procedure for the trial of summons cases is contained in Chapter XX and that of warrant cases in Chapter XXI. According to Section 4 (i) (v) and (w). 'summons-case' means a case relating to an offence and not being a warrant case : and 'warrant case' means a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding one year. This section does not speak of summons offences and warrant offences, but of summons cases and warrant oases. Where the Code deals with offences, it divides them into 'cognizable.' and 'non-cognizable', but where it is dealing with procedure, then it speaks not of offence but of cases. Although the Code, as observed earlier, has laid down the procedure separately for the triai of summons-cases and 'warrant cases', there is no provision as to which procedure should be observed when the complaint before the Magistrate discloses 'summons-cases' as well as 'warrant-cases'. Under these circumstances, the proper course for the Magistrate is to observe the procedure for the trial of 'warrant cases.' The reason seems to be obvious. The procedure with regard to the trial for the graver charge should be followed in preference to the more summary procedure appropriate to less serious offences. There is no dispute so far as this proposition is concerned, and the learned Counsel on both sides are agreed on this. There is considerable judicial authority also in support of this view. See Bajnarain Koonwar v. Lala Tamoli Baut (1885) L.L.R. 11 Cal 91, Raghuvalu Naicker v. Singaram A.I.R. 1918 Mad. 371, Kanji Vijpal v. Pandurang Keshav A.I.R. 1940 Bom. 418, Swaroop Singh v. Emperor A.I.R. 1948 All, 135 and Mappillaisami Thevar v. Muthuswamt Iyer A.I.R. 1949 Mad. 76.
6. Once the trial is rightly started as the trial of a warrant-case, there is no provision in the Code under which at a later stage the procedure can be changed to be one prescribed for trial of a summons case. It is absolutely immaterial that the charge which is framed may relate, to an offence triable as a summons case. If the change of procedure is permitted, in most of the cases, it may act to the prejudice of the accused inasmuch as he may lose the right of double cross-examination. This being the position of law, the various cases cited on both sides may now be examined.
7. The earliest case relied upon by Mr Chawla is decided by Wallace J. in Yeukatarama Iyer's case A.I.R. 1923 Mad 439. The relevant para in the judgment reads as follows:
No doubt Section 247 appears in the Chapter headed 'Or the trial of summons cases' and not in the Chapter beaded 'Of the trial of warrant cases', but in my opinion that does not settle the point at issue. Section 247, seems to me intended to lay down a general principle that a person charged with a summons case offence Is entitled in law to an acquittal if the complainant is absent; and I cannot see why this right should be denied to him simply because the Magistrate has adopted a particular procedure in the trial of the case Ex hypothesis in such contingeney, the complainant has so exaggerated his case that the Magistrate had to try it as a warrant-case, whereas, if the complainant had not exaggerated it, and the Magistrate had tried it as a summons case ab initio the acquittal on the ground of complainant's absence could have been perfectly legal. I cannot see any justification either in law or in reason why accused should lose this right to demand an acquittal merely because the complainant exaggerated the case against him. To hold otherwise would be to allow a pure technicality to negative a substantial legal right. If any conflict arises between technicalities and the legal rights of an accused person, undoubtedly the latter must prevail.
8. With respect, the learned Judge is not right when he says that Section 217 seems to lay down a general; principle that a person charged with a summons case offence is entitled to in law to an acquittal if the complainant is absent. Section 247 is contained in Chap. 20 which deals with the trial of summons-cases. This section is, therefore, available only to those accused against whom trial is being held under this chapter. If trial is held according to the provisions contained in Chap. 21, that is 'Of the trial of warrant-oases', Section 247 obviously becomes inapplicable. It is again not correct to say that the trial is held by the Magistrate as a warrant case only because the complainant has exaggerated his case. Before proceeding to trial, the Magistrate applies his mind and comes to a prima facie conclusion that the trial of a graver offence, namely, under procedure 'of trial of warrant cases' is called for. It is the satisfaction of the Magistrate which results in the trial either as the trial of a summons case or of a warrant case. Wallace, J. was alive to this situation when he said that a pure technicality could not be allowed to negative a substantial legal right. The legal right does not flow-to the accused on any general principle as assumed by the learned Judge, but under Section 247 of the Code of Criminal Procedure only. As observed in the earlier part of this judgment, once the trial is commenced rightly as the trial of a warrant-case, it is not permissible for a Magistrate to invoke the provisions of Section 247 of the Code of Criminal Procedure, if the complainant is absent. This section is available only if the trial is held under chap. 20 of the Code of Criminal Procedure.
9. In Daulat Ram's case A. I. R. 1958 punj. 817, decided by Bhandari, C. J. no fresh reasons were given in support of the judgment and reliance was mainly placed on the decision of Wallace. J. in Venkatarama Iyer's case AIR 1923 Mad 439. The view of Bhargava J. in Bodn Ram's case ILR (1963) 13 Raj 632, is based on the two decisions of the Madras and Punjab High Courts, quoted above, and needs no further examination.
10. The view of Shinde, J. in Ratanlal Jagannath's case AIR 1954 Madh-B2 is based on two Allahabad cases reported as Ganga Saran v. Emperor AIR 1921 ALL 282 and Govind v. Emperor AIR 1927 ALL 270(1). A decision of the Madras High Court in Public Prosecutor v. Thawasa Jandi' Thevan (1909) 4 Ind cas 1039 (Mad), was also relied upon by the learned Judge. The relevant observations made by him are in these words:
This view is based mainly on the ground that when a case starts as a warrant case the accused may reserve his right of cross-examination and hence if the procedure is changed be may lose his right of cross-examination. If, therefore, it is necessary in the interest of the accused to stick to the procedure of warrant cases, when it is once started, it is not fair to change it simply because the accused derives benefit of Section 247 thereby.
In the present case, the Magistrate had summoned the accused to stand their trial under Sections 448, 427 and 504, Penal Code. The offences under the latter two sections, namely 427 and 504, are triable as warrant cases being punishable with imprisonment for two years. The Magistrate was, therefore, justified in conducting the trial as a warrant case trial. A charge was framed under Section 448 and the prosecution witnesses were further cross-examined by the accused. On the day fixed for recording the statements of the accused, the Magistrate obviously could not resort to the provisions of Section 247 of the Code of Criminal Procedure if the complainant was not present. After the charge has been framed even Section 259 of the Code of Criminal Procedure is not applicable. The Magistrate, therefore, acted illegally when he dismissed the complaint for the default of appearance of complainant. A learned single Judge of this Court (Shamaher Bahadur J. in Nidhan Singh v. Kaur Singh 1964-66 Pun LR 295 has observed:
In view of the proviso added to Section 247 of the Code by Act 26 of 1955, even in summons oases the Magistrate can proceed with the case on complainant's failure to attend when he considers that complainant's personal attendance is not necessary. In the stage which the case had reached, it was the duty of the Magistrate to have proceeded with the ease despite the absence of the complainant when the entire evidence of the prosecution bad been recorded and the evidence on behalf of the accused alone remained to be taken.
In this case, charge had been framed against the accused and further cross-examination of the prosecution witnesses had also been recorded.
11. While considering Sections 253 and 259 of the Code of Criminal Procedure, Allsop, J., in Chiranji Lal v. Ram Swarup AIR 1943 ALL 9, observed:. but once the charge has been framed or if the case is non-compoundable and cognizable, an order dismissing the complaint for non-appearance of the complainant is wrong as it is the duty of the Magistrate in the Interests of the general public to see whether ah offence has been committed and to punish it if he thinks that the accused is guilty.
Similar observations were made in Emperor v. Nazo alias Ali Nawaz AIR 1943 sind 148, which reads as follows:
The acquittal of the accused under Section 259 after the charge has been framed on the ground of the complainant's absence is wrong because Section 259 does not provide for an acquittal of an accused person in the absence of the complainant but for his discharge, and such order of discharge can only be made at a time before a charge In the case has been framed. When the charge has been framed the absence of the complainant can have no effect and the Magistrate is bound to proceed to dispose of the case on its merits.
Due to all the reasons stated above, it is held that the learned Magistrate had no jurisdiction to pass the impugned order. This revision petition, therefore, fails and is dismissed.
R.P. Khosla, J.
12. I agree.