Decided on September 06,1967


Referred Judgements :-


Cited Judgements :-



TYAGI, J. - (1.)THIS is an appeal by special leave under sec. 417 (3) Criminal Procedure Code filed by the Municipal Council, Jaipur, challenging the order of acquittal of the respondent Rameshwarlal passed by the Municipal Magistrate First Class, Court No. 2, Jaipur.
(2.)RESPONDENT Rameshwarlal was prosecuted by the Municipal Council under sec. 7 read with sec. 16 of the Prevention of Pood Adulteration Act, 1954. The complaint was filed against the respondent on 12th December, 1963. It appears from the record that the statement of the Food Inspector T. N. Saxena was recorded by the trial court but thereafter the said officer, who had signed the complaint on behalf of the Municipal Council, did not appear before the court. On 2nd August, 1965, the complainant filed an application before the court that the Public Analyst may be summoned to be examined by the court, but the application was objected by the accused. The court passed an order that a copy of the application be given to the counsel for the accused and then a date was fixed to hear the arguments on that application. It so appears that the application was never pressed before the court thereafter. On the 12th October, 1965, the case came up before the court to record the statement of the prosecution witness Abdul Wahid but as soon as the court started recording the statement of the witness, an objection was raised by the learned counsel for the accused that his client should be acquitted because the complainant, namely, the Food Inspector T. N. Saxena was absent. The learned Magistrate stopped recording the statement of the witness and adjourned the case for the next day to hear the arguments of the parties on this objection. Next day, somehow the arguments could not be heard and, therefore, the parties addressed their arguments on the objection raised by learned counsel for the accused on 14th of October, 1965. It may be mentioned that on that day also T. N. Saxena was not present in the court and the Parokar of the Municipal Council could not give any reason for the absence of the complainant. The learned Magistrate, after hearing the parties, dismissed the complaint and acquitted the respondent on the ground that the first portion of sec. 247 Criminal Procedure Code contains a mandate that the accused shall be acquitted if the complainant was absent and the direction given in the latter part of the section can be exercised by the court only when the complainant or his counsel could satisfy the court that there were good grounds for the complainant not to attend the court on a particular date. The Municipal Council has preferred an appeal against this order of the learned Magistrate.
Learned counsel for the appellant has urged that the trial court has erred in understanding the true meaning of sec. 247 Criminal Procedure Code, especially the proviso that the Legislature has added to this section. Learned counsel appearing on behalf of the respondent, on the other hand, urged that even if the Court comes to this conclusion that the trial court has not properly understood the meaning of the proviso to sec. 247 Criminal Procedure Code and wrongly acquitted the accused on that basis, this Court should not interfere in the order of acquittal because in this particular case the accused has already been harassed by various adjournments granted by the court to enable the complainant to examine the prosecution witnesses. Learned counsel further pointed out that more than 20 adjournments were granted only to enable the complainant to summon the witnesses in the court.

After the amendment of the Criminal Procedure Code in 1955 the scope of the proviso to sec. 247 Criminal Procedure Code has been enlarged and it has been made applicable to all the complaints irrespective of the fact whether the} were filed by public servants or not. There is no doubt that sec. 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 the complainant does not appear, before the court, the Magistrate shall acquit the accused, but the 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. vs. Shri Habool (1), Joharilal vs. Ramjilal (2) and the State vs. Riyasati Prakashan (3) 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 passe 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 pro ceed further in the matter. This Court 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 "see, 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 on the true scope and the real intent of the provision of sec. 247, and the subordinate courts are expected to take guidance from these remarks of the Court.

In the instant case, witness Abdul Wahid was being examined before the court on behalf of the prosecution on 12th October, 1965. The court had also started recording the statement of the witness, but when the objection was taken by the learned counsel for the accused that he was entitled to acquittal because of the absence of the complainant, the court deliberately stopped recording the statement and passed an order of acquittal of the accused. In these circumstances, it cannot be said that without the complainant the court was not in a position to proceed with the case when the counsel for the complainant was present in the court to examine the prosecution witness. The impugned order was passed by the court because it did not properly appreciate the scope of sec. 247 Criminal Procedure Code. In such circumstances, the order of dismissal passed by the learned Magistrate on the very face of it is erroneous, and deserves to be set aside.

It may also be mentioned that the Food Inspector who had signed the complaint on behalf of the Municipal Council was already examined by the court, and his presence in the court was not necessary for taking further proceedings in the matter. Undoudtedly, the Food Inspector is a public servant and he is required to discharge his duties elsewhere also. In such cases the courts should not unnecessarily insist on the presence of the complainant who, as a public servant, is required to attend to his public duties outside the court.

I would have quashed the acquittal and remanded the case to the learned Magistrate for fresh trial but my attention has been drawn by learned counsel for the respondent to the order sheets of the trial court which disclose a sorry state of affairs. This case was filed in the month of December, 1963 and the order of acquittal was passed on 14th October, 1965. Within this period of 22 months only one prosecution witness, namely, the Food Inspector was examined. In all as many as 42 adjournments were granted out of which the case was adjourned for more than 20 times to accommodate the prosecution to produce the prosecution witnesses. In spite of these adjournments, it is regrettable that the prosecution could examine only one witness. The courts as well as the prosecuting agencies must know that the accused has to undergo great harassment when he stands a trial in a court of law, and therefore the courts should be anxious to see that the trial of an accused, as far as possible, is finished without any delay. Since the accused has already suffered a torture of a prolonged trial, I do not consider it advisable to send the case back for the re-trial of the accused.

In these circumstances, I decline to interfere with the order of acquittal of the accused-respondent and uphold it on ground entirely different from the one given by the lower court.

The appeal is dismissed. .

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