1. G.K. Bhagat, Returning Officer, Ajmer I (south-west) Constituency preferred a complaint under Section 182, I. P. C. against Arjandas Tulsidas. The complaint was presented in the court of the District Magistrate, Ajmer, on 12-3-1953 and the same day it was transferred to the Additional District Magistrate for disposal. The case came up for hearing on 25-3-1953. The accused appeared on that day and the charge was explained to him. He pleaded not guilty. On that day the complainant G. K. Bhagat was not present. The case was next taken up on 9-4-1953 on which day, the complainant and one other witness were examined. On 25-4-1953, the next day fixed in the case, the complainant was again absent. On that day the Assistant Public Prosecutor presented two applications. In one of these it was requested that certain additional witnesses may be summoned. In the other it was requested that the facts alleged constituted an offence under Section 193, I. P. C., and therefore, the case be tried as a warrant case. No order was passed on this application till 21-7-1953. On 30-4-1953 the accused presented an application urging that, in view of the fact, that the complainant was absent on 25-3-1953, 25-4-1953 and 30-4-1953, the accused is entitled to an acquittal under the provisions of Section 247, Criminal P. C. This application was rejected. The accused preferred a revision before the Sessions Judge. This revision application was rejected by the learned. Additional Sessions Judge on 6-6-1953 and now the accused has come up in revision to this Court. I have heard the learned Counsel for the applicant and the learned Assistant Public Prosecutor.
2. The first point for my consideration is whether the learned Magistrate dispensed with the personal attendence of the complainant under the proviso to Section 247, Criminal P. C. The proviso reads:
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.
It is not denied that the complainant is a public servant and it has not been challenged that in the particular facts of the case, it may with reason be argued that his personal attendance was not required on every hearing. The question is whether the learned Magistrate did, in fact, dispense with his personal attendance or not. The learned Magistrate, in his order on the accused's application dated 30-4-1953, has stated:
It is no doubt correct that the complainant was represented first by the Public Prosecutor and then by the A. P. P. and none of them made such request in writing or oral nor any order dispensing with the presence of the complainant was passed, but at the same time. I agree With the A. P. P. that the complainant being a public servant and also a City Magistrate was present in his court during these hearing days and he could have been readily called, if and when his personal presence was needed. Secondly, the proviso to this Section is such that by its virtue this Section does not apply to such cases in which a public servant is complainant and the court also found it fit to dispense with his personal attendence, as he was readily available in his court and could have been called at any time if needed. His presence on 9-4-1953 was necessary and he was called and examined. Such being the case, it was neither necessary for the A. P. P. to have made such request nor was it necessary for the court to pass any specific order as pleaded by the applicant.
3. From the first part of the learned Magistrate's order quoted above, it is clear that no request, written or oral, was made to him for dispensing with the attendance of the complainant nor was any order to that effect passed by the learned Magistrate. Later on, it appears to me, the learned Magistrate wished to say that as the complainant was present in his court, (which is probably in the same building) and was readily available, it was not necessary for the court to pass any specific orders. I am unable to follow this argument. I do not think the learned Magistrate wished to say that presence in the court compound is equivalent to the presence in the court room. What is required is presence in the court room and not in the court compound. It may be that the fact that the complainant was readily available and could attend the court at any time would have been sufficient justification for the learned Magistrate dispensing with the attendance of the complainant. But the question is whether the learned Magistrate did, in fact, dispense with the complainant's attendance or not. So far as that is concerned, I am of opinion that the facts that there is no written order, and that no request was made and I may point out that on 21-7-1953, the Assistant Public Prosecutor considered it necessary to make a request, indicate that the attendance of the complainant was not, in fact, dispensed with on 25-3-1953, 25-4-1953 and 30-4-1953. I am unable to agree with the learned Assistant Public Prosecutor that because the learned Magistrate did not acquit the accused and proceeded with the case, he may be presumed to have dispensed with the attendance of the Complainant. In my opinion a judicial discretion had to be exercised in the matter. The question had to be considered and decided upon, even if a written order was not absolutely essential, and there can be no presumption on this point.
4. The learned Assistant Public Prosecutor has next urged that as the Public Prosecutor was present, the accused could not have been acquitted under Section 247, The learned Counsel relies on - Kutch Government v. Sevau Ishwarlal Thakoredas AIR 1949 Kutch 22 (A). I have also been referred to - Sudhir Kumar v. Emperor AIR 1942 Pat 46 (B); - Tej Singh v. Kallu AIR 1946 Oudh 15 CO; and - Natesa Naicker v. Mari Gramani AIR 1948 Mad 45 (D). It appears to me that the difference between the cases of a public servant and a private person is that the attendance of a public servant may be dispensed with. So far as the main clause of Section 247 is concerned and I have already held that the learned Magistrate did not actually dispense with the attendance of the complainant, the law is the same. The learned Magistrate had only two options. He could for some reasons consider it proper to adjourn the case. The alternative was that he was bound to acquit the accused. Not having adjourned the case, the learned Magistrate, in my opinion, was bound to acquit the accused.
5. The learned Assistant Public Prosecutor has next urged that this was a mere irregularity which is condonable under Section 537, Criminal P. C. Section 537 applies only if the error or irregularity has not, in fact, occasioned a failure of justice. In the present case, the accused was entitled to an acquittal, and is still being tried. I am, therefore, of opinion that Section 537 would not cure the irregularity.
6. No other point has been pressed before me. I, therefore, accept this revision and direct that Arjandas Tulsidas be acquitted of the charge under Section 182, I. P. C.