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T. Govindankutty Menon Vs. Thomas Chandy and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1955CriLJ321
AppellantT. Govindankutty Menon
RespondentThomas Chandy and ors.
Cases ReferredJoseph v. Anchelo Fernandez
Excerpt:
- - c, for adjourning a case for argument after taking the evidence of the complainant and the accused and that, therefore, failure on the part of the complainant to be present on the date to which the case was adjourned for argument cannot attract the provisions of section 247, criminal p. if there was nothing illegal in adjourning the case for argument after recording the evidence the complainant was bound to appear on the date to which the case was adjourned, and on his failure to do so the magistrate was competent to dismiss the complaint under section 247, there is, therefore, no force in this argument......after examining the complainant and his witnesses the magistrate adjourned the case for further hearing. the complainant did not appear on the date to which the case was adjourned and for that reason the magistrate dismissed the complaint. it was-held that the magistrate had the right to adjourn the case for hearing after recording the evidence and that he could therefore dismiss the complaint on the ground of non-appearance of the complainant on the date to which the case was adjourned.5. section 247, criminal 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.....
Judgment:

Vithayathil, J.

1. The complainant in C. C. No. 41 of 1953 of the Second Class Magistrate's Court, Kanayanur, is . the revision petitioner. He is the Sanitary Inspector of the Ernakulam Municipality. The complaint relates to an offence Under Section 4 (1), Cochin Prevention of Food Adulteration Act, Act XIV of 1109. The case is that tea sold by the third accused in a shop conducted by accused 1 and 2 contained extraneous matter.

After the examination of the prosecution witnesses and the defence witnesses the case was posted to 27-3-1954 for final hearing. On that day neither the complainant nor his advocate was present. The learned Magistrate dismissed the complaint Under Section 247, Criminal P. C, and acquitted the accused. The revision petition is from the order of acquittal.

2. Two grounds were urged in this Revision petition. One is that there is no provision in the Criminal P. C, for adjourning a case for argument after taking the evidence of the complainant and the accused and that, therefore, failure on the part of the complainant to be present on the date to which the case was adjourned for argument cannot attract the provisions of Section 247, Criminal P. C. The other ground is that the complainant being a public servant, the proviso to Section 247, would apply to the case and that the learned Magistrate went wrong in not acting under it.

3. So far as the first ground is concerned, it is true that there is no express provision in the Criminal P. C, for posting a case for argument after taking the evidence of the complainant and the accused. Section 245 provides:

245(1) If the Magistrate upon taking the evidence referred to in Section 244 and such further evidence (if any) as he may, of his own motion, cause to be produced, and (if he thinks fit) examining the accused, finds the accused not guilty, he shall record an order of acquittal.

2. Where the Magistrate does not proceed in accordance with the provisions of Section 349 or Section 562 he shall, if he finds the accused guilty, pass sentence upon, him according to law.

On the basis of the wording of the section, it is argued that adjourning a case for argument after the evidence of the prosecution witnesses and the defence witnesses is recorded is not a procedure sanctioned by the provisions of the Code. But,, there is nothing in the Code which prohibits the Magistrate from posting a case for argument after recording the evidence.

4. The question was considered by the Calcutta High Court in - 'Ramjiwan Rai v. Abilakh Barai1 AIR 1914 Cal 768 (A). It was observed thus in that case:

The principal point on which the District Magistrate has asked for our interference with the acquittal is that the Code makes no provision for argument in a case governed by Chapter 20, and therefore the presence of the complainant at the stage was not required by law. It is true that Chapter 20 of the Code makes no provision for argument in a summons case, but we are not prepared to say that the hearing of the case is; concluded with the examination of the witnesses for the parties. As a matter of fact, the case had been adjourned by the Sub-Deputy Magistrate to be heard again for the purpose of the argument and oral evidence being explained to him. In that view the hearing of the case did not end and therefore Section 247, Criminal P. C, had application to the circumstances of the case.

Reference was made to an earlier decision is -'Mudhosoodun Sha v. Hari Dass Dass', 22 Suth WR (Cr) 40 (B). In that case also after examining the complainant and his witnesses the Magistrate adjourned the case for further hearing. The complainant did not appear on the date to which the case was adjourned and for that reason the Magistrate dismissed the complaint. It was-held that the Magistrate had the right to adjourn the case for hearing after recording the evidence and that he could therefore dismiss the complaint on the ground of non-appearance of the complainant on the date to which the case was adjourned.

5. Section 247, Criminal 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 complainant is a public servant and his personal attendance is-not required, the Magistrate may dispense with his attendance, and proceed with the case.Under the section, the Magistrate has a power, to acquit the accused on the ground of non-appear-1 ance of the complainant on any day to which the hearing of the case is adojurned. If there was nothing illegal in adjourning the case for argument after recording the evidence the complainant was bound to appear on the date to which the case was adjourned, and on his failure to do so the Magistrate was competent to dismiss the complaint Under Section 247, There is, therefore, no force in this argument.

6. The second ground is that the complainant in this case being a public servant the learned Magistrate ought to have acted under the proviso to Section 247. Assuming that the Sanitary Inspector of a Municipality is a public servant as defined in Section 3 (2), Cochin Prevention of Pood Adulteration Act, Act XIV of H09, and that the proviso to Section 247 would apply to the case, the Magistrate had power to dismiss the complaint on the ground of non-appearance of the complainant on the date of hearing of the case.

The proviso to Section 247 only says that when the complainant is a public servant and his personal attendance is not required the Magistrate may dispense with his attendance and proceed with the case. It is a discretion given to the Magistrate. It is true that the complainant had already been examined in the case. But, that is no reason why neither he nor his counsel should be present when the case was called.

7. learned Counsel for the petitioner relied on the decision of this Court in - Joseph v. Anchelo Fernandez' AIR 1951 Trav-C. 25 (C). In that case the complainant had been already examined and on the date to which the case was posted he did not appear, but his advocate was present. The learned Judges held that in view of the fact that the complainant had already been examined and that his advocate was present when the case was called the Magistrate did not exercise his discretion properly in dismissing the complaint on the ground of non-appearance of the complainant.

But, in this case, neither the complainant nor his advocate was present when the case was called. In the circumstances, it cannot be said that the learned Magistrate did not exercise his discretion properly in dismissing the complaint. There is no ground to interfere in revision with the order of the court below, and the revision petition is accordingly dismissed.


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