NATESA NAICKER Vs. MARI GRAMANI

JUDGEMENT

(1.) This is an application to revise the order of acquittal passed by the Stationary Sub-Magistrate of Chingleput in C.C. No. 2470 of 1946 on his file under Section 247 pf the Criminal P. C.. That case arose upon a complaint filed by the petitioner herein against the respondent alleging the commission of offences by the respondents under Secs.447 and 426 of the Indian Penal Code. The case was posted first and heard on 6 December, 1946. After the examination of the complainant, it was adjourned to 16 December, 1946, for further evidence. On that day when the case was called, the complainant was not present either in person or by pleader and consequently the Sub-Magistrate acting under Section 247 of the Criminal P. C., acquitted the respondent- accused.

(2.) In the affidavit filed by the petitioner in this Court in this case, it is alleged that on that day he and his witnesses were present in Court from 10 a.m., that just before the case was called, the advocate appearing for the accused called him and asked him to fetch his vakil as the case was about to be called, that he immediately went to the Civil Court where his advocate was engaged and brought him before the Magistrate's Court within a five minutes, but in the meantime the case had been called and the respondent had been acquitted. This version has been supported in the affidavits of the Village Munsiff and of another person who is said to have been present for being examined as a witness by the complainant in his case. These allegations have, however, been refuted by the respondent in his affidavit, in which. he says that none of the witnesses were present, that the case was called at 1 p.m., and until then nobody had turned up, that the complainant gave up the case as he considered it futile to adduce any evidence. It is scarcely necessary to go into the merits of these averments as the legal position as to the applicability of Section 247 of the Criminal P. C. to the facts that transpired, is perfectly clear and free from doubt. Section 247 provides If the summons has been issued on complaint, and upon 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, the Magistrate shall, notwithstanding anything hereinbefore contained acquit the accused, unless for some reason he thinks proper to adjourn the hearing of the case to some other day. The proviso to the section is not material. It will be apparent from the language of the section that when in a summons case the complainant does not appear, it is imperative on the part of the Magistrate to acquit the accused, unless there is a proper reason for adjourning the hearing of the case. It is not the case of the complainant that there was any such reason of which the Magistrate was aware at the time he called the case and the complainant was absent. In these circumstances, there was no discretion in the matter ; the Magistrate was bound by the statute to acquit the accused. Where, therefore, an order has been passed in conformity with statutory duty, it must be held to be a proper and correct order, and there can be no question of revising such an order merely because it would cause some hardship to the party.

(3.) In Criminal Revision Case No. 229 of 1925 Jackson, J., had taken the view that the appearance of the complainant in any portion of the day is sufficient compliance with Section 247 and that the Magistrate was bound to wait for the appearance of the complainant until the close of the day. This view which was contrary to the prevailing judicial opinion at that time was dissented from by a Division Bench of this Court in Tonkya V/s. Jaganna1. In that case, it was held that Section 247 makes it obligatory on the Magistrate to acquit the accused if the complainant does not appear, unless there was proper reason before the Magistrate for the adjournment of the hearing of the case. The learned Judges said: Though the Magistrate could very well have waited for a short time, it cannot be said that the order of the Magistrate is illegal. He acted within his powers and when the order is not illegal it would not be right for this Court to interfere with it.