Yashoda Nandan, J. - (1.) On the 16th of November, 1970, Cr. A. No. 1688 of 1968, which is an appeal against an order of acquittal, came up for hearing before our learned brother Mohammad Hamid Hussain J. He found himself unable to agree with the view taken by A.K. Kirty, J. in Zuber v/s. Paras Ram (1969 AWR 504 :, 1970 ALJ 254) and K.N. Srivastava, J. in the connected Cr. A. Nos. 1689 and 1690 of 1968 Zila Parishad v/s. Dharampal, with regard to the scope of S. 247 of the CrPC hereinafter referred to as the code and consequently, referred this appeal to a larger bench. That is how this case has come up before us. The relevant facts giving rise to this appeal are that the appellant, Zila Parishad, filed a complaint before a First Class Magistrate of Budaun, alleging the commission of an offence u/S. 447, IPC, by the respondent. On the 19th of September, 1967, the learned Magistrate recorded the statement of the complainant u/S. 200, of the code, and ordered summons to issue for the appearance of the accused on the 4th of October, 1967. On the 4th of October, 1967, for some reason, not clear from the record of the proceedings, the accused failed to appear. The learned Magistrate, consequently, on the 4th of October, 1967, ordered fresh summons to issue for the appearance of the accused on the 17th of October, 1967. In the meanwhile, the ADM (J) transferred the case to the court of another learned Magistrate, and the transferee court ordered that the accused be summoned for the 11th of January, 1968. On the 11th of January, 1968, the accused appeared before the learned Magistrate, and applied for bail. The pairokar of the Zila Parishad and its counsel were also present. The learned Magistrate granted bail to the respondent and ordered that the case be put up on the 19th of January, 1968, for recording the statement of the accused. When the case was taken up on the 19th of January, 1968, no one was present on behalf of the complainant, though the accused was present. The learned Magistrate consequently passed a short order as follows: - - Abhiyogi Kai Bar Pukara Gaya To kewal Abhiyukt apne Abhibhashak Sahit Upasthit Aya. Abhiyogi ki oar se koi Upasthit Nahi Aya Na Unki upasthit Chhama ki hi koi Prarthana ki Gai Hai Wa Abhiyogi ko Aj Ki Tithi Ki Suchana Bhi Hai Chunki Pichhli Tithi ke Adesh Patra Par Unke Hastakshar Hai. Atah Abhiyogi ki Anupasthiti Men Abhiyog Nirast kiya Jata Hai. Wa Abhiyukt Apradh Se Mukt Kiya Jata Hai. Samay 3.25 Sayankal Ka Ho Chuka Hai. The order, though it does not mention the provision of law was apparently passed by the learned Magistrate in exercise of power u/S. 247 of the Code.
(2.) Aggrieved by the order of acquittal, the Zila Parishad has appealed to this court.
(3.) When the appeal came up for hearing before Hon. Mohammad Hamid Hussain, J. reliance was placed on the two decisions of A.K. Kirty, J. & K.N. Srivastava, J., mentioned earlier, in support of the contention that on the 19th of January, 1968, only the statement of the respondent was to be recorded and nothing was to be done by the complainant, and consequently, the trial court was not legally justified in dismissing the complaint and acquitting the respondent. The decisions, were relied upon in support of the submission that S. 247, of the code, does not come into play until the Magistrate has acted in accordance with the provisions contained in Ss. 242 and 243, of the code. Mohammad Hamid Hussain, J., was not inclined to accept the view taken in the two decisions relied upon. In his view, S. 247 is independent of Ss. 242 and 243 of the Code. Hence the reference to a larger bench. S. 247, of the code reads as follows: 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 when 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.;