- (1.) This criminal appeal is preferred by the complainant against the acquittal of the respondent-accused by the Judicial IInd Class Magistrate, Ponnur, invoking section 247, Criminal Procedure Code. The order of the learned Magistrate, dated 26th October, 1964 reads as follows :- "The case was called on for hearing to-day to which it had been adjourned. The complainant not having present either in person or by pleader, the accused is acquitted under section 247, Criminal Procedure Code. " Mr. Bheema Raju appearing for the appellant contended that the Magistrate was in error in ordering the acquittal of the respondent for the mere reason that he was absent at 11 A.M., that the Magistrate should have waited till the end of the Court hours, i.e., till 5 P.M. and if it was found that the complainant had not come to the Court even by then, it is then that he could have exercised his jurisdiction under section 247, Criminal Procedure Code and acquitted the accused. The following facts may be necessary to appreciate the contentions raised by the learned Advocate for the appellant.
(2.) The complainant preferred a complaint against the respondent before the Judicial IInd Class Magistrate, Ponnur disclosing offence under sections 323, 352 and 506, Indian Penal Code which are all summons cases. The case has been adjourned to 26th October, 1964 for hearing and it so happened that the complainant was absent at 11 A.M. It is the case of the complainant that he came at 11-30 A.M. and by then the Magistrate had pronounced the order. Then he made a copy application, obtained a copy of the order and then preferred the appeal. He had filed an affidavit of the Advocate in addition to his own affidavit explaining the reasons for being unable to be present at 11 A.M. when the Court had started its work. The affidavit of the complainant is to the effect that on the relevant date, 26th October, 1964, he went to Sri P. Seetharama Sarma at about 8 A.M. and engaged him to appear in the case and that the Advocate deputed his junior to go to the Court and file the Vakalat and take necessary steps to issue summonses to the witnesses. The affidavit of the Advocate confirms that the appellant came to him and engaged him. and that he (the Advocate) deputed his junior to go to the Court and take necessary steps for the issue of processes to the witnesses for appearance but it does not show that the appellant was unable to get a bus in time. The affidavit of the appellant further shows that at Bapatla he could not get a bus till 10-30 A.M. and therefore he could not reach Ponnur till about 11 A.M. and by the time he reached the case was already called and disposed of. Therefore the question that falls for consideration in this appeal is whether the Magistrate was justified in acquitting the accused, as the complaint was absent at 11 A.M. when the case was called for hearing. It has also to be considered whether the Magistrate should wait till the end of the day or till such time that the complainant chooses to make his appearance, and then decide the action to be taken. According to Mr. Bheema Raju the Magistrate in this case has not exercised his discretion properly and he should have waited for a reasonable time before he invoked the provisions of section 247, Criminal Procedure Code. In support of his contention he relied on the following decisions.
(3.) The Hyderabad High Court in United Industrial Corporation v. S. M. fftusain, A.I.R. 1955 Hyd. 192. held that "No doubt section 247, Criminal Procedure Code gives a discretion to the Magistrate to dismiss a complaint for the non-appearance of the complaint but such a discretion must be used in a judicial manner. Dismissing a complaint at the early hours of the Court when there was other work before the Court was not justified, in our opinion, under the circumstances. There is another flaw in the order of the Magistrate. Under section 247 the accused can be acquitted and not discharged." The order of the Magistrate was set aside by the learned Judges for the reason that he had not exercised the discretion properly and that he committed an error in discharging the accused when he had to be acquitted. He next relied upon State of Bihar v. Deodar Jha. A.I.R. 1958 Pat. 51. Dealing with the scope of section 247, Criminal Procedure Code the learned Judges of the Patna High Court observed : "The principle underlying section 247, Criminal Procedure Code, is that in cases where summons has been issued on complaint there must be someone in charge of the case to look to the progress of the trial. Sometimes, unlike the State cases, where State Officials are engaged for the prosecution, the Court's time is unnecessarily occupied in calling out the witnesses who may be loitering here and there in the Court premises.......... It is for this reason that the Legislature, in its wisdom, thought it fit to lay the responsibility upon the private complainant who was to be penalised in case he appeared to be negligent by his unjustified absence. The Legislature also gave a discretion to the Court to adjourn the hearing of a case if it appeared to it to be reasonable. The section does not provide that the reason should be recorded in writing.................. Whether the Magistrate had exercised his discretion in the proper manner or in an arbitrary fashion, will depend upon the facts of each case and it cannot be argued that the Court, as a matter of routine, should acquit the accused if the complainant happens not to be present on a particular date or time of hearing. ";