N.M. Miabhoy, J.
1. This group of five appeals arises from five orders of acquittal passed by the learned Judicial Magistrate, First Class, Ghogho, in five cases by which he acquitted, in each case, under Section 247, Criminal Procedure Code, the accused of the offence punishable under Section 112, Motor Vehicles Act.
2. The point which arises for determination in this group of appeals is common and this judgment will dispose of ail the five appeals.
The facts in all the five appeals are the same and we shall mention the facts in Criminal-Appeal No. 32 of 1960 in order to understand the point raised before us. In that case, a complaint was filed against the respondent on 22-6-1959 by Shri N.A. Dave, Police Sub-Inspector, Crimes Branch, Amreli, for the offence punishable under Section 112, Motor Vehicles Act. The complaint was registered and, below the complaint, the learned Magistrate made the following order:
Register the complaint. Issue summons under Section 112 of the Motor Vehicles Act against the accused.
3. The Rojnama states that, as per this order, a summons be issued to the P.S.I., Ghogho. However, from the record of the case, it appears that no summons was prepared and issued to the respondent on the basis of the aforesaid order Instead what happened was that a Yadi was prepared by the officer the learned Magistrate addressed to the P.S.I. Ghogho in which the latter was requested to keep the respondent present in Court on 25-5-1959. When the matter was taken up on the latter date it was found that the respondent was absent. The Rojnama states that the summons was not returned. Probably the reference is to the Yadi. From an affidavit which is filed in this Court it appears that the Yadi was returned to the learned Magistrate by the P.S.I Ghogho on the ground that the work entrusted to him did not pertain to his duty. That Yadi was returned to the Magistrate by the Sub-Inspector Ghogho under a report No. 3244 dated 24-6-1959 with an endorsement that the complaint was filed by Shri Dave and that his Police Station was not concerned with the said complaint. So the P.S.J. Ghogho requested the learned Magistrate to issue summons to the respondent. Thereupon the learned Magistrate forwarded that Yadi under his No. 500 dated 25-6-1959 to the P.S.I. Ghogho directing him to keep the respondent present in the Court of the learned Magistrate on 29-6-1959. From the affidavit it appears that the Yadi was received by Mr. Dave on 27-6-1959 and on the same day he wrote a letter to the respondent informing him to appear in the Court on 29 When the matter was taken up before the learned Magistrate on 29 he found that the complainant Mr. Dave was absent. Thereupon acting under Section 247 Criminal Procedure Code the learned Magistrate passed the impugned order acquitting the respondent of the offence under Section 112 Motor Vehicles Act.
4. The short submission which the learned Government Pleader makes on the aforesaid facts is that the learned Magistrate had no power to pass the order because the condition precedent to the passing of an order under Section 247 Criminal Procedure Code was not satisfied on the facts of the present case. He contended that in order that the learned Magistrate may have the power to pass an order of acquittal it was necessary that the summons should have been issued on the complaint and that on the facts of the case no such summons was issued. All that had happened in the present case was that an order for issuing of summons was made but actually the summons was not issued as required by the provisions of the Criminal Procedure Code. Section 68 of the Criminal Procedure Code provides that every summons issued by a Court under this Code shall be in writing in duplicate signed and sealed by the presiding officer of such Court. Section 204 provides that in a proceeding instituted upon a complaint made in writing every summons shall be accompanied by a copy of the complaint. Section 68(2) enacts that a summons so prepared shall be served by a Police Officer. Therefore the mere making of an order for issue of summons is quite different from the issuance of summons. In order that a summons may be issued some further steps have got to be taken by the Court after an order for issue of summons is passed. The further steps which have got to be taken are that the Court must prepare a document in duplicate sign and seal the same and after attaching a copy of the complaint if the same happens to be writing the same has got to be sent for service to the accused through the officer mentioned in Sub-section (2) of Section 68 of the Criminal Procedure Code. It is these steps which constitute the issuance of a summons. The submission of the learned Government Pleader was that in the present case all that was done was that a summons was ordered to be issued but that in fact a summons was not issued and it is the latter fact which gives jurisdiction to the Court to act under Section 247 Criminal Procedure Code. On the language of Section 247 Criminal Procedure Code we have no doubt whatsoever that the submission is correct. We must construe this Section strictly because the consequence of the non-appearance of the complainant is that an order of acquittal has to be passed without there being a trial on the merits.
5. As against the aforesaid contention the contention of Mr. Shah the learned Advocate for the respondent was that the issuance of a summons was not necessary and all that was necessary was the non-appearance of the complainant on the date of the hearing. It was contended that the section was designed to compel the complainant to remain present on every date of hearing and to visit him with the consequence of an acquittal order in case the complainant remain absent on any particular day. It was urged that the section did not attach any importance either to the presence or the absence of the accused. It was contended that that being so the moment the Court passed an order on the complaint for the issue of the summons the Court had jurisdiction and power to pass the order under Section 247 Criminal Procedure Code if the complainant remained absent. We do not think we can accept this argument. That argument is against the plain language of the section itself. If the aforesaid argument were correct then the words if the summons has been issued on complaint would be unnecessary and we would not be attaching any importance to those words. But Mr. Shah the learned Advocate for the respondent placed strong reliance upon the case of Shanker Dattatraya Faze v. Dattatraya Sadashiv Tendulkar reported in 53 Bom. 693. He contended that this case was in favour of the proposition that it was not necessary that the summons should actually be issued to the respondent before the Court can act under Section 247 Criminal Procedure Code. We do not think that that case is of any assistance in the construction of Section 247 Criminal Procedure Code. In that case the question as to what conditions are necessary in order to attract the provisions of Section 247 of the Criminal Procedure Code did not arise for consideration at all. The Court was called upon to construe Section 403 Criminal Procedure Code and the main question which had to be decided in that case was as to whether a person can be said to have been tried within the meaning of Section 403 Criminal Procedure Code if an order of acquittal was passed in his favour under Section 247 Criminal Procedure Code. From the facts of the case it appears that in that case in the original complaints a summons was issued but that it was not served upon the accused. On these facts it was contended that in as much as the accused had not appeared before the Court the trial had not commenced and therefore the accused could not be said to have been tried within the meaning of Section 403 Criminal Procedure Code. In order to support this argument, it was further argued at the bar in that case that unless summons is served in a summons case against the accused the trial cannot be said to have commenced against the accused. This argument was repelled by the Court on the ground that as soon as a Magistrate takes cognizance of an offence and an order for summons is issued the proceedings are said to commence against the accused and under Section 247 Criminal Procedure Code it was not necessary that the summons should be served or that the accused should be present in Court before an order of acquittal is passed in his favour on account of the absence of the complainant. From these observations it is quite clear that in that case Their Lordships had not to deal with a case in which the summons had not been issued. They had to deal with a case in which the summons had not been served. Secondly Their Lordships were not called upon in that case to decide upon the validity of the order passed under Section 247 Criminal Procedure Code but they were only required to consider the effect of the order which was passed under Section 247 with reference to Section 403 of the Criminal Procedure Code. Therefore in our judgment the aforesaid case is of no assistance in deciding the present case.
6. Mr. Shah the learned Advocate for the respondent also relied upon the case of Kiran Sarkar and Anr. v. Emperor reported in 24 Criminal Law Journal 815. In that case it was held that the important point for an order under Section 247 Criminal Procedure Code is the presence or absence of the complainant and it was further held that it cannot be said that the accused must either be present or must have been summoned to the Court. The latter expression undoubtedly supports the argument of the learned Advocate for the respondent but that expression has got to be read in the light of the facts of that case. From the facts of the case it appears that in that case also a summons was issued and not merely ordered to be issued as in the present case. Therefore the aforesaid case also is of no assistance in the present case.
7. On the whole having regard to the language of Section 247 Criminal Procedure Code we have come to the conclusion that the issuance of a summons is a condition precedent to the making of an order of acquittal under that section and as that condition has not been satisfied in the present case the provisions of Section 247 were not attracted.
8. Finally Mr. Shah the learned Advocate for the respondent relied upon Section 537 of the Criminal Procedure Code. He contended that the non-issuance of a summons was merely an irregularity committed by the learned Magistrate and that order should not be reversed unless the Court comes to the conclusion that there has been a failure of Justice. In our judgment Section 537 Criminal Procedure Code does not apply to the facts of the present case. The question that we have got to consider in this case is not about the regularity or otherwise of the failure of the learned Magistrate to issue summons but the question for consideration is whether the learned Magistrate had at all the power of passing an order of acquittal in the absence of the issuance of summons. If the learned Magistrate had no such power then the order of acquittal is bad not on the ground that the learned Magistrate had failed to issue summons but it is bad on the ground that because the summons had not been issued the learned Magistrate had no power whatsoever to pass the impugned order of acquittal
9. Some arguments were advanced before us as to why the Legislature had enacted the provisions contained in Section 247 Criminal Procedure Code. It was contended that the object of the section was to compel the complainant to remain present on every date of hearing so that further progress may be made in the hearing of the complaint and that if the complainant remained absent on any day the Legislature thought that the further progress of the case may be impeded and if the complainant remained absent then an order of acquittal should be passed. It is not necessary for us to speculate as to why the Legislature introduced Section 247 Criminal Procedure Code. Prima-facie the argument appears to be sound that the provision was enacted in order that the complainant may give all necessary assistance to the Court for the purpose of terminating the criminal proceeding. But it appears to us that the Legislature also thought that the assistance of the complainant would be necessary to he Court only after the Court had discharged its preliminary duty of issuing the summons. It is only after that duty has been performed by the Court and-if the complainant remained absent that the Legislature has conferred jurisdiction upon the Court to pass an order of acquittal.
10. For the aforesaid reasons we have come to the conclusion that the learned Magistrate was wrong in thinking that he had power to pass the impugned order. If an order is passed which a Magistrate has no jurisdiction or authority to pass then that in itself constitutes a substantial and compelling reason for reversing the order. Therefore in our judgment all the appeals should be allowed and an order should be passed to re-try the respondents in each appeal on the same facts in accordance with law.
11. All the five appeals are allowed. The acquittal orders in those appeals are aside. It is directed that the learned Magistrate shall proceed with the complaints from the stage at which they were left and proceed to determine the same in accordance with law.