V.P. Tyagi, J.
1. Since common question of law is involved in all these five appeals filed by the Municipal Council, Udaipur, for dismissing its complaints against the respondents Under Sections 235, 253 and 255 of the Rajisthan Muncipalities Act, 1959, therefore, I propose to dispose them of by one judgment.
2. In order to understand the nature and the question involved, it will be proper to set out the relevant facts.
3. On 3rd of December, 1971, the Municipal Council issued certain instructions exercising its power vested in it Under Section 235 of the Rajasthan Municipalities Act prohibiting the slaughter of the animals within the Municipal area except the slaughterhouse. It is said that respondent Khema in case No. 275 of 1972 like other respondents was found slaughtering the goats in front of his shop. Shri Parmeswar Narain, Municipal Inspector found a glaring disobidience of the said instructions of the Municipal Council and, therefore, a challan was put up against the accused persons for the offences referred to above.
4. It may be mentioned that all the accused persons were found violating the directions of the Municipal Council on the same day; therefore, all these five cases ware taken together by the learned Municipal-Magistrate, Udaipur.
5. On 20th of April, 1973, the court passed the order in these cases to hand over the necessary papers to the accused persons and then directed the accused to be present in the court for their examination and for the arguments whether any case was made out against the accused persons It may also be mentioned that on 1st of June, 1972 the court had exempted the complainant from the court appearance and it was perhaps due to this order of the court that the complainant did not attend the court personally on 25th of May, 1973, when the statements of the accused were to be recorded and the arguments on behalf of the parties were to be heard by the learned Magistrate.
6. On 25th of May, 1973, the counsel for the complainant was present in the court along with the accused and their counsel. The learned trial Magistrate while acting Under Section 247 of the Code of Criminal Procedure dismissed the complaint for the non-appearance of the complaint. It is this order of the dismissal of the complaints which has been challenged in these appeals by the Municipal Council, Udaipur. In all these five cases a similar order in the same language was passed by the learned trial Magistrate.
7. As is apparent from the order sheet of the trial court 25th of May, 1973, was fixed by it in order to examine the accused and then to hear the arguments of learned Counsel for the parties whether any case was made out by the complainant against the accused persons where after further proceedings could be taken by the court. Instead of examining the accused and recording their plea and hearing the arguments of learned Counsel for the parties, the court proceeded to dismiss the complaints on a request made by learned Counsel for the accused. In the impugned order however, the court noted that exemption was granted to the complainants on 1st of June,1972, but it did not take into consideration tbe implications of such exemption being granted by the court.
8. In Municipal Council, Jaipur v. Rameshwarlal 1968 RLW 221 Johrilal v. Ramjilal 1964 RLW 418, C.R. Alwaran v. Shree Habool 1959 RLW 376 and State v. Riyasati Prakashan ILR (1963) 13 Raj. 161 this Court while deciding a similar question has clearly laid down the real intent and the scope of Section 247 Criminal Procedure Code. In Municipal Council, Jaipur v. Rameshwarlal 1968 RLW 211 it has been observed by the Court as follows:
After the amendment of the Criminal Procedure Code in 1955 the scope of the proviso to Section 247 Criminal Procedure Code has been enlarged and it has been made applicable to all the complaints irrespective of the fact whether they were filed by public servants or not. There is no doubt that Section 247 Criminal Procedure Code provides that if on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, complainant does not appear, before the court, the Magistrate shall acquit the accused, but Legislature has added a proviso to this Section which reads.
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.
This Court in C.R. Alwaraa v. Shree Habool 1968 RLW 211 Johrilal v. Ramjilal 1964 RLW 418 and the State v. Riyasati Prakashan 1959 RLW 376 has considered the scope of the proviso and it has laid down that before dismissing a case for the non-appearance of the complainant before the court it becomes the duty of the court to see whether the personal attendance of the complainant is necessary on that date when he passes the order of acquittal, and if the court comes to the conclusion that the personal attendance was not necessary to proceed in the matter on the day the order of acquittal is passed, then the court is not bound to acquit the accused but to proceed further in the matter. This Caurt in Johrilal's case (2) has denounced this practice of dismissing the complaint for the non-appearance of the complainant if the court could take further proceedings in the case without the complainant and has observed that 'sec 247 is not intended to serve as a short cut for the trial courts to dismiss cases by snap judgments. The power to dismiss the case is undoubtedly there when the complainant in a case instituted on a complaint is absent in a summons case, but that power must be judicially exercised; and it must see and consider having regard to the circumstances of a given case whether the presence of the complainant was essential on that date to proceed with the case or it could be dispensed with'. Those observations of the Court throw sufficient light be the true scope and the real intent of the provision of Section 247, and the subordinate courts are expected to take guidance from these remarks of the Court.
9. It is regrettable that the subordinate courts have not taken note of these rulings of this Court which set out the law in very clear and unambiguous terms. The impugned orders passed by the learned trial Magistrate on 25th of May, 1973 in each of the five cases are Ex. facie illegal, and they do not conform to the requirements of Section 247 Criminal Procedure Code.
10. The appeals are allowed, the order in each case is set aside and the matter is sent back to the file of the Municipal Magistrate, Udaipur to proceed further in each case in accordance with the provisions of law.