T.U. Mehta, C.J.
1. The appellant Jai Parkash Sharma had filed a private complaint against the respondents Nos. 1, 2 and 3 for the alleged offences punishable under Sections 323 and 506 of the Indian Penal Code, in the Court of the Magistrate First Class, Bilaspur. The incident which is referred to in the complaint is said to have taken place about six years ago, i.e. on 6th October, 1973 at 10-30 A. M. According to the complainant, respondents 1, 2 and 3 had caught him and had given 'blows on his body with an electric-type hunter'.
2. After the process was issued, the matter came up before the learned Magistrate on 18-12-1973 when the complainant Jai Parkash was present in person and the respondents Nos. 1 and 3, Jagdamba Prasad and Mata Prasad, were also present in person. However, the respondent No. 2 Shakti Prasad was not present and the summons which was issued to him was also not received back, served or unserved. The court, therefore, ordered that fresh address of respondent Shakti Prasad be filed and he may be summoned on the next date which was fixed for 7th January, 1974.
3. The matter was taken up for hearing on 7-1-1974 when the court found that the complainant was not present, nor his Advocate was present. The court made the following proceedings on 7-1-1974:
Present: Jagdainba Prashad and Mata Prashad accused with Shri D.S. Kutal, Advocate. The case has been called thrice. It is 11-00 A. M. now. The complainant is not present, nor his counsel. The case is, therefore, dismissed for default of the complainant, under Section 247, Cr.P.C. and the accused are acquitted.
4. It is an admitted position that after this order of acquittal was passed by the court under Section 247, the old Code of Criminal Procedure, no further proceedings took place in that court, and there is nothing to show that either the complainant or his Advocate appeared before the court during the course of hearing on that day.
5. The complainant, however, preferred the present appeal against the above referred order of acquittal, on 3rd March, 1974. Along with the appeal he filed a certificate showing that from 4-1-1974 to 11-1-1974 he was admitted to Civil Hospital, Roper. In the appeal memo the appellant has further averred that since on 7th January, 1974 he was not able to attend the court on account of his sickness, he had sent one of his relatives Shri Bhagwati Prasad to file an application in the court as per copy found at Annexure E in this appeal. It is said that at that time Shri Bhagwati Prasad was also in possession of a medical certificate showing that the appellant was not capable of remaining present in court. It is further averred in the appeal memo that when Shri Bhagwati Prasad was to file his application for adjournment, he came to know that the case was already dismissed by the Magistrate for default at 11-00 A. M. and therefore Bhagwati Prasad did not file that application.
6. Before proceeding further on the points raised in this appeal, we would like to note that even in this appeal the appellant has not filed any affidavit of Bhagwati Prasad showing that he was about to file an application for adjournment but could not do so as he came to know that the ease was dismissed by the court. The appellant has also not shown in this appeal any reason why he could not remain present in court through his Advocate on the day of the hearing. The documets which he has filed in this appeal are admittedly not in the record of the trial court.
7. The learned Advocate of the appellant, however, contended that even apart from the question whether the appellant Was sick and made an attempt to get an adjournment of the case through his relative Bhagwati Prasad, the order in question is patently bad and illegal as it is in violation of the specific instructions issued in the III Volume of the Rules and Orders of Punjab High Court, Chapter 1-F, Paragraphs 2 and 3. It was contended that according to the various decisions given by the High Court of Punjab, it was incumbent on the learned Magistrate to call the case even on the sub-sequent part of the day and to pass necessary orders only at the close of the day, as the use of the expression 'day sub-sequent thereto to which the hearing may be adjourned' appearing in Section 247 of the Code of Criminal Procedure, suggests that the complainant could have appeared at any time during the course of the day of the hearing, that is at any time on 7th January, 1974 during court hours. The learned Advocate of the appellant also contended that according to the instructions issued by the Punjab High Court in the above referred Chapter 1-F, the learned Magistrate ought to have recorded the reasons for dismissing the complaint and since one of the accused-persons was still not served for the date of 7th January, 1974 the learned Magistrate was not required to record any evidence and therefore he ought to have exercised his discretion by adjourning the case to the next date instead of dismissing the same.
8. Before dealing with the various contentions raised on behalf of the appellant, it would be proper to note the provisions contained in Section 247 of the Code of Criminal Procedure, 1898 which governs the facts of this case as well as the instructions contained in paragraphs 2 and 3 of Chapter 1-F of the HI Volume of the Rules and Orders of Punjab High Court.
9. Section 247 is in the following terms:
247. Non-appearance of complainant.-If the summons has been issued on complaint, and upon the day appointed for the appearance of the accused, or any day sub-sequent 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 ease to some other day: 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.
On plain reading of the wordings of this Section, it appears that if on the day appointed for the appearance of the accused the complainant does not appear, the order which the Magistrate should ordinarily pass is to acquit the accused. However, if the Magistrate does not prefer to pass the said order of acquittal and prefers to adjourn the hearing of the case to some other day, then he must have reasons for doing so.
10. It was, however, found by the High Court of Punjab that these provisions were sometimes misused by some Magistrates who, with a view to secure disposal, resorted to undue haste, and called the private complainants in the earlier part of the day, and taking advantage of the absence of the complainants, dismissed these cases. Under these circumstances, the High Court of Punjab issued some very wholesome instructions which are found in paragraphs 2 and 3 of Chapter 1-F. These instructions are as under:
Some Magistrates are inclined to dismiss cases in default hastily.
2. Before a case is dismissed by reason of the absence of complainant, the Magistrates should carefully consider-
(a) whether such an order is legal; and
(b) whether it is justified by the circumstances.
In view of the proviso added to Section 247 of the Code by Act 26 of 1955, even in summons cases the Magistrate can proceed with the case on complainant's failure to attend when he considers that complainant's personal attendance is not necessary.
Reasons should always be recorded where a case is dismissed in default.
3. In applications for revision of orders dismissing complaints or cases instituted on complaint, by reason of the absence of the complainant, it is frequently urged-
(a) that the complainant was not called;
(b) that the case was dismissed very early in the day; or
(c) that the Magistrate being on tour, the complainant had no, or insufficient, notice of the place of sitting.
(ii) The Magistrates' records, often furnish no definite; information on any of these points, The following instructions are accordingly issued for guidance to subordinate Courts:
(a) Magistrate should not dismiss complaints or cases instituted on complaint without giving complainants full opportunity for appearance. Ordinarily, if a complainant is absent when his case is first called on, his case should be called on again later, and the time of dismissal should always be noted on the record.
(b) When the Magistrate is on tour, complaints or cases instituted on complaint should not be dismissed unless the complainant has had due notice of the place of hearing.
(c) In carrying out these instructions Magistrates should bear in mind that if a summons case in which a summons has been issued, is dismissed on account of the absence of the complainant the accused must be acquitted, unless the Magistrate decides to proceed with the case under the proviso recently added to Section 247 of the Code. A warrant case, in which proceedings have been instituted on complaint, can only be dismissed in the absence of the complainant, if the offence is one that can lawfully be compounded, or is not a cognizable offence. In the later case the Magistrate may, in his discretion, discharge the accused at any time before a charge has been framed, under Section 259 of the Code of Criminal Procedure. If the offence is cognizable or is one that cannot lawfully be compounded, the Magistrate is bound to proceed with the case and decide it on its merits.
(d) Section 247 of the Code of Criminal Procedure does not apply when the entire evidence in a case has been concluded and the case has been adjourned only for judgment without the attendance of the complainant having been specially directed.
It is obvious that these instructions do not amount to statutory rules and are issued only for the guidance of the concerned Magistrates. However, the guidance, having been provided by the High Court, has to be obeyed and followed by all Magistrates. But the fact remains that if the court sitting in appeal finds that there is some breach of any part of these instructions, but at the same time the instructions have been sub-stantially followed, or there is no sub-stantial injustice caused in the matter, then a mere breach of these instructions would not vitiate the order as illegal. The instructions are obviously directory in nature and are not |issued under any statutory authority and, therefore, they cannot be construed as having the force of a statutory law.
11. In this connection the learned Advocate of the appellant drew our attention to several decisions of Punjab High Court wherein, on facts of the case, the High Court of Punjab has set aside the acquittal order passed under Section 247 of the Code of Criminal Procedure. These cases are Municipal Committee, Rampur v. Hoop Dass (1968) 70 Pun LR (D) 303; Prabh Dayal Gobind Ram v. R. Mudgil A. S, M., Railway Station Raman ; The State v. Gurdial' Singh Gill ; Gurdial Singh v. Gyani Karnail Singh (1974) 76 Pun LR 315 and Kislian Das v. Manohar Lal (1964) 66 Pun LR 71. He also referred to the decision given by the Judicial Commissioner, Himachal Pradesh in Union of India v. Lachhman and the decision given by the Delhi High Court in Mohd. Yamin v. Zafar Mohammad 1968 DLT 141. We have perused all these decisions in great details. These decisions undoubtedly lay emphasis on the fact that the Magistrates concerned should, at the time of taking action under Section 247 of the Code of Criminal Procedure, comply with the instructions issued by the High Court and should not lightly dismiss the complaint for the default of appearance of the complainant. However, none of these decisions has considered the question whether the instructions have the force of law and whether they are merely directory or mandatory in character. As noted by us above, these instructions are not issued under any statutory power and therefore cannot assume the character of law.
12. However, it cannot be disputed hat these instructions are meant to be obeyed, But if these instructions are once ound to be directory in nature, it is leccssary for the appellate court to see whether, in view of the facts and circumstances of each particular case, the order if acquittal has resulted in injustice or lot. In all the cases which were cited at:he Bar during the course of the hearing of this case, the facts were such that even we would have been inclined to pass the same orders setting aside the acquittal as passed in these different decisions. In almost all these cases the complainant was present during the course of the day of the hearing. In many of these cases, evidence of the complainant was over and the want of the presence of the complainant during the course of the hearing did not matter at all. Therefore, we find that all these cases have been decided on individual facts which justified the setting aside of various orders of acquittal.
13. Though it is true that the learned Magistrate in this case has not recorded any reasons for passing the order of acquittal in default of the complainant, the question to be considered is whether non-recording of reasons can be considered fatal having regard to the facts and circumstances of this case. These facts and circumstances show that neither the complainant nor his Advocate was present at 11-00 A. M. when the case was called. The facts further show that sub-sequently also during the course of the whole day, neither the complainant nor his Advocate appeared before the court. Bhagvvati Prasad who is said to have been deputed by the complainant to seek adjournment on that day has not filed any affidavit even at the appellate stage and there is nothing to show that he had attended the court on that day with a view to seek adjournment. Under these circumstances even if the case was called rather early in the day, it follows that no useful purpose would have been served bad the case been called again at the close of the day. In view of these facts, it is not possible to say that the learned Magistrate was not justified in passing the order of acquittal on the day on which the case was called for hearing.
14. It was contended on behalf of the appellant that at any rate since the plea of the accused person was not recorded, and since one of the accused was not even served, there was no scope for recording any evidence either of the complainant or of his witnesses on 7th January, 1974. In this connection he relied on a decision given by a learned single Judge of Allahabad High Court in Zuber v. Paras Ram reported in 1970 All LJ 254, and contended that till the procedure contemplated by Sections 242 and 243 was not over, Section 247 did not come into play and that being so, the dismissal of the complaint and acquittal of the accused on 7th January, 1974 was illegal and improper. We find that the learned Judge of Allahabad High Court has in this case made the following observations which do support this contention of the learned Advocate of the appellant:
It will be seen that under Sub-section (1) of Section 244, the question of hearing the complainant (if any) and taking of evidence can arise only when the procedure provided under Section 243 has been followed by the Magistrate and the necessity of actually trying the case as such has arisen with the object of ultimately deciding whether the accusations made against the accused person have been proved or not according to law and whether on the facts admitted or proved the accused has been shown to have committed any offence triable under Chapter XX. This will be clear from secs. 242 and 243. Judging the scope, ambit and applicability of Section 247 in this perspective, the only reasonable conclusion which to my mind, can be arrived at is that the provisions contained in Section 247 become effectively operative only when the Magistrate after following the procedure laid down in secs. 242 and 243, finds it necessary to hear the complainant and take evidence under Section 245.
The learned Judge of the Allahabad High Court while giving this decision has dissented from the contrary view taken by a Division Bench of Assam High Court on this point in Jiban Chandra v. Pabin Chandra reported in ILR (1959) 11 Assam 306.
15. We are of the opinion that having regard to the scheme contemplated by the procedure in summons cases given in Chapter XX of the Code of Criminal Procedure, 1898, there would be no justification for the view taken by the Allahabad High Court in the above referred case. This Chapter XX begins with Section 241 winch states that the procedure to be observed in the trial of summons cases would be as prescribed by the succeeding sections. According to Section 242, particulars of the offence shall be stated to the accused without framing a formal charge when the accused appears or is first brought before the court. According to Section 242, if the accused admits that he has committed the offence, his plea shall be recorded in his own words and he could be convicted on his plea. Then follows Section 244 which states the procedure when the accused does not make any admission. According to this section, if the accused does not make the admission, the Magistrate should proceed to hear the complaint and take all such evidence as may be produced in support of the prosecution. Now the contention was that when the accused appears before the court and pleads not guilty, the Magistrate should adjourn the case to a different date for recording the evidence of the complainant. But this contention is not found to be correct. What the above referred sections do is to provide for a set procedure and Section 244 read with Section 242 nowhere says that the plea of the accused and recording of evidence cannot be done on the same day of hearing. What it says is that before the stage of recording of evidence begins, the plea should be recorded. But there is nothing to prevent a Magistrate from covering both the stages during the course of the same day. Under the circumstances, even in this case it was open to the Magistrate to record the plea of the accused who was present on 7th January, 1974 and to proceed to record the evidence of the com plainant on that very day after recording the said plea. If one of the accused persons was not present on that day, it was open to the Magistrate to split up the trial. Therefore, it is not possible to say that on 7th January, 1974 the only thing which was open to the Magistrate was to record the plea of the accused. It is a different matter if the Magistrate himself preferred to adjourn the case without recording the evidence of the complainant. But the contention that there should be an adjournment between the day on which the plea of the accused is recorded, and the day on which the evidence of the complainant is recorded, is not borne out by any of these sections. Under the circumstances, the presence of the complainant on 7th January, 1974 was neces sary and if there were some reasons which justified his absence on that day, he should have either sought an adjournment or should have presented himself at any time during the course of the day to show his bona fides.
16. Another contention which was raised was that if a Magistrate passes an order of dismissal for default of the complainant by calling the case earlier on the day of the hearing, that act would itself be illegal and uncontemplated by the provisions of Section 247 because, according to the learned Advocate of the appellant, the use of the word 'day' suggests the course of the whole day and enables the complainant to remain present in court at any time during the course of that day. In support of this contention, reliance was placed on the decision given by a single Judge of Allahabad High Court in Ram Narain v. Mool Chand : AIR1960All296 . In a lengthy judgment recorded by the learned Judge in that case it has been Held that the word 'day' used in Section 247 meant the whole of the working hours of the day and not the moment when the case is called. We have gone through this decision but, with great respect of the learned Judge, we find it difficult to agree with the view taken by him. All cases are fixed on a particular day or date, and if this view is taken, then every litigant concerned in these cases can legitimately insist to remain present only at the close of the day when the court is about to rise. In such a contingency, the court would not be able to transact any business and whole position would become certainly ridiculous. Therefore, the only reasonable view which could be taken is that when a case is fixed on a particular day or date, the concerned parties are bound to remain present when the case is called during the course of that day or date, because, the calling of the case depends upon the nature and the urgency of the business which is required to be transacted on that day, and not upon the volition of the litigant to remain present at his leisure by selecting a particular time on that day. The view taken by the Allahabad High Court in the above referred case is, therefore, in our opinion, rightly rejected by other High Courts in Chinnam Rarnnath v. Chandramma Guni : AIR1963Ori90 , In re Jamnabai Meghji AIR 1934 Bom 130 and Tonkya v. Jagannatha AIR 1926 Mad 1009.
17. In view of this discussion and especially in view of the facts and circumstances of the ease as obtained on 7th January, 1974 when the learned Magistrate passed the impugned order, we are of the opinion that there is absolutely no justification for interfering with the said order of acquittal. This appeal, therefore, fails and the same is dismissed.