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Ali Altaf HossaIn and ors. Vs. Golam Rahaman Mallik - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Case NumberCriminal Revn. No. 769 of 1958
Judge
Reported inAIR1959Cal525,1959CriLJ971
ActsCode of Criminal Procedure (CrPC) , 1898 - Section 247
AppellantAli Altaf HossaIn and ors.
RespondentGolam Rahaman Mallik
Appellant AdvocateJ.M. Banerjee and ;Archana Sen Gupta, Advs.
Respondent AdvocateS.S. Mukherjee and ;Murari Mohan Mukherjee, Advs.
Excerpt:
- .....was that they had been falsely implicated out of grudge and enmity. 4. the trial was held by the learned magistrate in a summary manner. upon hearing evidence the learned magistrate convicted and sentenced the petitioners as stated above. 5. mr. banerjee appearing in support of this rule has argued that on 11-4-1958 the complainant having absented himself, the learned magistrate should have acquitted the petitioners under the provisions of section 247 of the code of criminal procedure. it is said that the ground of the complainant's absence that he was ill on the date, was in effect dis-believed by the learned magistrate and yet the petitioners were not acquitted as they should have been. the magistrate's order-sheet indicates that he noted the absence of the complainant and the fact.....
Judgment:
ORDER

Debabrata Mookerjee, J.

1. These three petitioners have been convicted by a Magistrate of the first class at Seram-pore under Section 323 of the Indian Penal Code. Petitioner Ali Altaf Hossain has been sentenced to pay a fine of Rs. 80/-, in default to suffer simple imprisonment for one month. Each of the other two petitioners has been sentenced to pay a fine of Rs. 40/-, in default to suffer simple imprisonment for thirty days.

2. The case for the prosecution briefly was that the complainant had worked as a labourer under Ali Altaf Hossain some time prior to 3-10-1957. On the last mentioned date the complainant approached petitioner Ali Altaf Hossain to ask for his dues when Ali Altaf got annoyed and beat up the complainant. The other two petitioners also joined in the assault. The injuries which were suffered as a result of the assault were examined by a Doctor at Serampore on the day following. The complaint out of which this Rule arises was instituted in Court on 10-10-1957.

3. Several witnesses were examined by the complainant in support of the case made by him. The petitioners denied the charge and the defence was that they had been falsely implicated out of grudge and enmity.

4. The trial was held by the learned Magistrate in a summary manner. Upon hearing evidence the learned Magistrate convicted and sentenced the petitioners as stated above.

5. Mr. Banerjee appearing in support of this Rule has argued that on 11-4-1958 the complainant having absented himself, the learned Magistrate should have acquitted the petitioners under the provisions of Section 247 of the Code of Criminal Procedure. It is said that the ground of the complainant's absence that he was ill on the date, was in effect dis-believed by the learned Magistrate and yet the petitioners were not acquitted as they should have been. The Magistrate's order-sheet indicates that he noted the absence of the complainant and the fact that a medical certificate had been filed which did not contain the signature or the thumb impression of the complainant. Mr. Banerjee bases his argument upon this observation of the Magistrate and submits that it amounted to disbelieving the medical certificate itself. I am not prepared to accept this extreme contention. As far as I can see, the Magistrate merely noted the fact that the medical certificate did not bear either the signature or the thumb-impression of the complainant. Such signature or thumb-impression does not appear to me to be a requirement of the law, and that being so, it cannot be urged that the absence of such signature or thumb-impression necessarily invalidated the medical certificate or falsified the plea of illness.

6. Mr. Banerjee has further argued that the effect of the provision contained in Section 247 of the Code is that the Magistrate will ordinarily acquit an accused person who is being tried under Chapter XX of the Code, if the complainant absents himself on the date fixed for hearing of the case. That, it is said, is the general rule. The exception to that rule, according to Mr. Banerjee, is that there must be present some circumstance to indicate that an adjournment is necessary in the interests of justice so as to enable the complainant to prosecute his case on some future date. In other words, there must be some imperative reason to induce the Magistrate to adjourn the hearing of the case to future date. In the absence; of any such reason the learned Magistrate, it is said, erred in adjourning the case thereby enabling the complainant to prosecute his complaint. In my view this argument does not appear to be tenable. What Section 247 of the Code prescribes is that there has to be an acquittal of an accused person who is being tried under Chapter XX of the Code in the event of the absence of the complainant; but where the Magistrate sees reason to adjourn the case, he will do so to enable the complainant to prosecute his complaint. The fact that in spite of the observation made, as respects the want of signature or thumb-impression on the medical certificate, the Magistrate saw reason to act upon it and to adjourn the hearing to a future date, would obviously mean and imply that he felt persuaded that this was a case where the complainant should be given an opportunity to prosecute the case. The section does not require that the reason which weighed with the Magistrate in adjourning the case to some future date has to be expressly stated. The section does not say that a Magistrate will adjourn the hearing to some other date for reasons to be recorded by him. That being the position I do not think it will be right to hold that the Magistrate went beyond the limits of Section 247 of the Code of Criminal Procedure by adjourning the case to a future date for unstated reasons. As I said the section does not require the reasons to be stated. The section merely means that if in the discretion of the Magistrate an adjournment appears necessary, such adjournment will be granted to enable the prosecutor to proceed with the complaint on some future date to be fixed by the Magistrate.

7. Mr. Banerjee has then argued that there was delay in lodging the complaint in this case and that being so the Magistrate acted improperly in acting upon the evidence of the complainant and his witnesses. Mr. Mukherjee appearing on behalf of the opposite party points out that the delay was due to the fact that several holidays intervened between 3rd October and 10th October on which last mentioned date, the complaint was actually filed. That is also the explanation submitted by the learned Magistrate. I think, in the circumstances, the delay stands explained.

8. A criticism was made to the effect that the complainant had gone out of his way to consult a doctor at Serampore and get his injuries examined by him when as a matter of fact it appears clear from the evidence that several local doctors were available. That again I think is a question of fact which must be taken to have been considered by the learned Magistrate.

9. The medical evidence in the case indicates that there were as many as four injuries inflicted on the complainant. Three of them were swellings and one was an incised wound 1 1/2' x 1/8'. It was however a skin-deep wound. The injuries were said to have been inflicted with a split bamboo. I think in all the circumstances of the case and taking into account the medical evidence, the ends of justice will be sufficiently met if the sentence of fine of Rs. 80/- imposed upon petitioner Ali Altaf Hossain be reduced to a fine of Rs. 50/-, in default simple imprisonment for one month only. The sentences of the other petitioners are maintained.

10. The order of compensation made by thelearned Magistrate will stand. The Rule is disposedof accordingly.


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