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Mafatlal Manilal Shah Vs. C.C. Shah - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Case NumberCriminal Appeal No. 966 of 1963
Judge
Reported inAIR1965Guj180; 1965CriLJ98; (1965)0GLR592
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 247
AppellantMafatlal Manilal Shah
RespondentC.C. Shah
Appellant Advocate S.N. Patel, Adv.
Respondent Advocate A.H. Mehta and; A.D. Desai, Addl. Govt.Pleader
Cases ReferredN.Tonkya v. Jagannatha
Excerpt:
- .....out. the idea of the matter being called out is, however, present in order ix, rule 8, civil procedure code, which provides that where the plaintiff does not appear when the suit is called on for hearing, the court shall make an order that the suit be dismissed. a similar wording is not found sec.247, cr.p.c. the words 'when called on for hearing' which are absent cannot be added in the section. this view was taken by jackson j, of the madras high court in cr.r.c. no.229 of 1925 (mad). but subsequently in n.tonkya v. jagannatha, air 1926 mad 1009, two judges of the madras high court have taken a contrary view referring to the provisions of o.ix, r.s, civil procedure code.(3) as already observed, it is not proper to import the words into the section which are not there. the words.....
Judgment:
ORDER

(1) A criminal complaint filed on behalf of the Municipality of Kalol was dismissed and the accused were acquitted on the ground that the complainant was absent when he was called out. On the same day, a few hours later, the complainant gave an application stating that he was present in the Court and did not hear of his name being called out. He, therefore, prayed that the complaint, which was dismissed under Sec.247, Cr.P.C., should be restored, but the learned Magistrate rejected the request. Hence this revision application by the original complainant.

(2) Section 247, Cr.P.C. reads as follows:-

'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:..........'

The complaint was present on the day to which the matter was adjourned. The section does not say that the complainant should be present when being called out. The idea of the matter being called out is, however, present in Order IX, Rule 8, Civil Procedure Code, which provides that where the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed. A similar wording is not found Sec.247, Cr.P.C. The words 'when called on for hearing' which are absent cannot be added in the section. This view was taken by Jackson J, of the Madras High Court in Cr.R.C. No.229 of 1925 (Mad). But subsequently in N.Tonkya v. Jagannatha, AIR 1926 Mad 1009, two Judges of the Madras High Court have taken a contrary view referring to the provisions of O.IX, R.S, Civil Procedure Code.

(3) As already observed, it is not proper to import the words into the section which are not there. The words 'when called on for hearing' cannot be imported in Sec.247, Cr.P.C. No doubt, this interpretation may cause some inconvenience, but in such a case, it is for the Legislature to intervene and make an amendment by adding the words 'on being called on for hearing' in Sec.247, Cri.P.C., as are in the Civil Procedure Code. But until the amendment is made, the Court cannot add the words 'on being called on for hearing' in Sec.247, Cr. P.C. and cannot read those words in the said section when those words are not there. Even otherwise this is a fit case for restoration.

(4) I, therefore, order under Sec.561-A of the Criminal Procedure Code that the order of the learned Magistrate be set aside and the case be restored.

(5) AI/V.B.B.

(6) Revision allowed.

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