Decided on March 19,1974

GOPINATHAN Respondents


- (1.) A common question arises in these criminal appeals and hence these are being disposed of by a common Judgment. The appellant in all these cases is the Revenue Inspector, Shertallai Municipality, and the respondents are the accused in the relevant criminal cases, who have not paid profession tax levied on them. All these cases ended in acquittal of the accused under S.247 Cr. P.C. since the complainant, the appellant here, was not present when the cases were taken up on 28-10-1972. The order is similar in all cases and the same is extracted below: "The case was called on for hearing to-day to which it had been posted. The complainant not being present either in person or by pleader the accused is acquitted under S.247 Criminal Procedure Code". The cases against which criminal appeal Nos. 66 and 67 of 1973 are filed were posted to 28-10-1972 to bring the accused, pursuant to warrants issued against them. It is said that in these two cases Pw. 1 was examined in part. In the other three cases, from which criminal appeal Nos. 68, 69 and 70 arose, the cases were posted for appearance of the accused. The question is whether S.247 Cr. P.C. could be freely exercised, as the Magistrate has done in these cases, without taking into account whether the presence of the complainant was absolutely necessary on that day and whether the case could have been proceeded with on that day without his presence. It is necessary to extract S.247 Cr.P.C. "247. 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: 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." In these cases, even if the complainant was present the cases could not have been proceeded with. It is seen that the complainant had made a report to the court in all these cases that he was on privilege leave and his absence may be excused. The order would indicate that the case was "called on for hearing today". This may not be correct. Two cases were posted for the production of the accused and the other three cases, for appearance of the accused.
(2.) The learned counsel for the appellant invited my attention to a few cases where the scope of S.247 Cr.P.C, was considered. The decisions are reported in Johrilal v. Ramjilal AIR 1965 Rajasthan 19, Chinnam v. Chandramma AIR 1963 Orissa 90, In re Jamnabai v. Meghji AIR 1934 Bombay 130, Joseph v. Anchalo Fernandez AIR 1951 TC 25 and Union of India v. Lachhman AIR 1962 HP 57. In all these cases, the point emphasised is, where the Court may legitimately come to the conclusion that the personal attendance of the complainant is not necessary and the case could not make any progress even if the complainant was present, he should dispense with the complainant's attendance and proceed with the case or adjourn it, as the case may be.
(3.) In the cases on hand, if the accused were present and had admitted the offences with which they were charged, the Magistrate could have straightaway entered conviction against them. If they did not admit the offence, the cases will have to be adjourned to another date for evidence to be taken. In none of these cases could the Magistrate proceed with the case or make any progress. In Union of India v. Lachhman, AIR 1962 HP 52, the learned judge who decided the case went to the extent of observing that to use the provisions of S.247 Cr.P.C. particularly where even with the presence of the complainant no progress could be made will amount to abuse of the process of Court. Although I do not go to that extent, the principle appears to be well settled that S.247 Cr.P.C. can be invoked to acquit the accused only when the Magistrate is satisfied either that the complainant has been deliberately absenting himself or when he could make no progress in the case if the complainant is present.;

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