A.N. Grover, J.
1. This is an appeal by special leave against an order made by Shri Des Raj Mahajan, Magistrate, 1st Class, Bhatinda, dated 7th September 1963, acquitting the respondent on the ground that the complainant was absent. It was also stated in the order that the respondent had not been served as the copy of the complaint had not been filed by the complainant.
2. The appellant filed a complaint, dated 16th August 1963, against the respondent who was posted as Assistant Station-master, Railway Station Raman, accusing him of offences under Sections 323/504, I. P. C. After recording the statement of the complainant and another person Bant Ram the learned Magistrate directed the issue of summons to the respondent on 29th August 1963, to answer the charge under Section 323, I. P. C. His order was in these terms:--
'From the evidence and the document on the record I am of the opinion that there are sufficient grounds to proceed against the accused under Section 323, I. P. C. He be summoned on payment of process-fee for 7th September 1963.' On 7th September 1963, the order under appeal was made. It runs as follows:--'Present :--None for, the complainant. Accused not served, as the copy of the complaint was not filed. Hence the accused is deemed to have been acquitted.'
The appellant filed an application on that very day saying in the application that he had gone out for a short while to drink water although he was present in Court and that his complaint should not have been disposed of in the manner in which it had been done. It was stated by him in the application that the time at which he was making it was 11 O'clock in the morning. This application was disposed of on 9th September 1963, by the learned Magistrate who dismissed it by saying that since the accused had been acquitted no application could be entertained for restoration of the complaint. Section 247, Cr. P. C., provides--
'If the summons 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 not necessary, the Magistrate may dispense with his attendance, and proceed with the case'.
Certain rules and orders have been framed by this Court which are embodied in Vol. III, Chap. 1-F, headed as 'Dismissal of cases in default'. Rule 2 says that before a case is dismissed by reason of the absence of complainant, the Magistrate should carefully consider--
(a) whether such an order is legal; and
(b) whether it is justified by the circumstances.
In view of the proviso added to Section 247 of the Code by Act 26 of 1955, even in summons cases the Magistrate can proceed with the case on complainant's failure to attend when he considers that complainant's personal attendance is not necessary. Reasons should always be recorded where a case is dismissed in default. Rule 3 ibid is in the following terms:--
'3. In applications for revision of orders dismissing complaints or cases instituted on complaint, by reason of the absence of the complainant, it is frequently urged--
(a) that the complainant was not called;
(b) that the case was dismissed very early in the day; or
(c) that the Magistrates being on tour, the complainant had no, or insufficient, notice of the place of sitting.
(ii) The Magistrates' records often furnish no definite information on any of these points. The following instructions are accordingly issued for guidance to subordinate Courts--
(a) Magistrate should not dismiss complaints or cases instituted on complaint without giving complainants full opportunity for appearance. Ordinarily, if a complainant is absent when his case is first called on, his case should be called on again later, and the time of dismissal should always be noted on the record.
(b) When the Magistrate is on tour, complaints or cases instituted on complaint should not be dismissed unless the complainant has had due notice of the place of hearing.
(c) In carrying out these instructions Magistrates should bear in mind that if a summons case in which a summons has been issued, is dismissed on account of the absence of the complainant the accused must be acquitted, unless the Magistrate decides to proceed with the case under the proviso recently added to Section 247 of the Code.. .....'
3. In the present case the learned Magistrate completely ignored the above rule and there is no indication whatsoever as to when the case was first called and whether it was called for the second time and what was the time when the complaint was dismissed. The obvious intention or object in framing this rule and issuing instructions embodied in it for guidance to Subordinate Courts is to ensure that the complainant has had full opportunity for appearance and that the Magistrate does not dispose of the complaint in a manner which may result in injustice. It has been held in Kishan Das v. Manohar Lal, 1964-66 Pun LR 71 that where a complaint under Section 330 of the Penal Code was dismissed for default in the early hours of the day by the Magistrate and the order of the Magistrate on the complainant's application for restoration of the complaint showed that the application for restoration was presented on the same day at 11-40 a.m. the order of the Magistrate dismissing the complaint in default in the early hours of the day and not allowing the complainant an opportunity to appear in the later part of the day was against the direction of this Court as embodied in the above rule and was against law. In that case the appeal was allowed and the order of the learned Magistrate dismissing the complaint in default and acquitting the accused was set aside. A Division Bench of this Court in State v. Gurdial Singh Gill, AIR 1961 Punj 77 made the following observations with reference to the provision contained in Section 247, Criminal Procedure Code:
'The object of this provision of law is to prevent the complainant being dilatory in the prosecution of his case, but it nowhere lays down that in all cases where the complainant is found to be absent on the date of hearing, the case has to be dismissed. On the other hand, it vests discretion in the Magistrate to adjourn the hearing of the case to some other date, or to proceed with the case even if the complainant is not present at the trial of a summons case.
The last part of Section 247, Cri. P. C. clearly lays down that the Magistrate need not dismiss a complaint, if he is of the opinion that it would be proper to adjourn the hearing. From this it is evident that the dismissal of the complaint on account of the complainant's absence is not to follow as a matter of course, but before passing such an order the Magistrate has to apply his mind to the facts of the case before him and to consider whether it would not be proper to adjourn the hearing instead of dismissing the complaint.'
4. In the present case the learned counsel for the respondent points out that the copy of the complaint had not been filed by the complainant and that was a kind of default which furnished sufficient justification for not adjourning the case in the absence of the complainant. A learned Single Judge of this Court has expressed the view in Ram Narain v. Bishamber Nath, AIR 1961 Punj 171 that the failure to attach a copy of the complaint with the summonses does not by itself completely invalidate or nullify the issue of the process. The supply of such a copy to the accused on or before his appearance, though it is not attached with the summonses, may cure the defect, at worst, adjournment would, generally speaking, place the accused, for all practical purposes, in the same position as if such a copy had originally accompanied the summonses. Section 537 would thus cure the defect. It was further held that the provisions of Section 204(1-B) of the Criminal Procedure Code are directory and not mandatory.
5. In view of what has been stated above, there can be no manner of doubt that the learned Magistrate did not apply his mind properly to the requirement of the rules and the statutory provisions. Consequently the appeal is allowed and the order of acquittal is hereby set aside. The case shall go back to the learned Magistrate for disposal in accordance with law.
Jindra Lal, J.
6. I agree.