Kundan Singh, J. - (1.) THIS revision has been preferred against the order and judgment in Criminal Revision No. 271/89, dated 10-10-1990 passed by XII Additional Sessions Judge, Agra who allowed the revision setting aside the order dated 24-5-1989 passed by LCC-1, Agra in Criminal Case No. 732/88.
(2.) THE brief facts of the present case are that complainant, opposite party No. 2, filed a complaint case before a learned Magistrate, Agra. THE learned Magistrate after recording the evidence of the complainant under Sec tions 700 and 202 of the Criminal Procedure Code took cognizance offences and found a prima facie case under Sections 147, 323, 504 and 506, IPC on 24-5-1989 which was fixed in the case, the complainant was found absent and the learned Magistrate passed the impugned order dated 24-6-1989 dismissing the complaint under Section 245 (2) of the Criminal Procedure Code on the ground that the complainant was absent and he also did not attend the court on the previous two dates and also there being no sufficient ground for the adjournment of the case because there was no evidence on record to establish the charge against the accused. The complainant filed a revision application before the learned Session Judge, Agra against the impugned order dated 24-5-1989 passed by the learned LCC-1, Agra, dismissing the complaint under Section 245 (2), CrPC. The lower Revisional Court allowed the revision application holding that the complainant was present on the last two dates of hearing and he was attend ing the court continuously on an earlier date i.e. on 11-4-1989, there was a thumb-impression of the complainantion the order sheet and had he not been interested in the prosecution of the accused and not being in a position to produce his witnesses in support of his complaint, he would not have filed the revision before the learned Sessions Judge. It is also mentioned that the com plainant alleged that he reached the court at 10-00 a. m. and there he found his case had already been dismissed as he was not aware of the morning court if the complainant was interested to produce his evidence, he would have been given an opportunity to prove the case. The learned Additional Sessions Judge directed the parties to appear before the learned Magistrate for further proceed ings and the complainant was also directed to produce his witnesses under Section 344, Criminal Procedure Code. I have heard Sri V. K. Chaturvedi, counsel for the applicants and counsel for the State. The learned counsel for the applicants argued that the complainant was not appearing before the trial Court and he was not producing his evidence to prove his case against the accused person. The case under Sections 323, 504, 506, IPC is compoundable but it was conceded that the offence under Section 147, IPC is not a compoundable offence under the pro visions of Criminal Procedure Code, but in some cases the Hon'ble Supreme Court has held that if the other offences are compoundable, the offence under Section 147 will also be compoundable as it is not a substantial offence along with other offences such as under Sections 323, 324, IPC.
(3.) I have examined the matter and came to the conclusion that the observation made by Hon'ble Supreme Court is in respect of a compromise application moved before the court concerned. In this case, no compromise application has been moved so far, as such the offence under Section 147, IPC cannot be deemed to be a compoundable offence under the provision of the Criminal Procedure Code. I also perused the record of the case and I came to the conclusion that the order of the learned Magistrate is not sustain able in the eye of law and the Additional Sessions Judge was fully justified in setting aside the order passed by the learned Magistrate. As the learned Magistrate passed the order in the manner as giving of a head note and not giving sufficient material and reasons in support of such a head note. The learned Magistrate made a mention in the order that the complainant was absent and had not attended the Court on the two last dates prior to the date of passing the impugned order and no adjournment application on behalf of the complainant was moved and there was no ground for adjournment of the case. In my opinion the absence of the complainant was no ground for dismissal of the complaint under Section 245 (2), Cr PC which could only be made under Sec tion 249, Cr PC subject to the condition that offence alleged to have been com mitted by accused person is compoundable offence and that offence should not be made a cognizable offence. In the present case, the offence under Section 147, IPC neither being compoundable or non-cognizable offence, therefore the present case would not have been dismissed on the ground of absence of the complainant, under Section 245 (2), Cr PC. The learned Magistrate had no option but to take steps for securing the presence of the witnesses by exercising power under Section 311, Cr PC even if the complainant was not present and even if he was negligent in getting the attendance of his witnesses. The learned Magistrate had made a mention in his order that the complainant was absent even on two earlier dates and no application for adjournment of the case was moved on behalf of the complainant and there was no reason to adjourn the proceeding of the case. This observation of the learned Magistrate is erroneous and uncalled for. It is evident from the order sheet of the case that the complainant was present on 30-9-1988 and he had affixed his thumb-impression. On the order-sheet dated 18-11-1988 which clearly shows that the parties were present on 18-11-1988. The order-sheets dated 11-4-1989 and 24-5-1989 also show the thumb-impression of the com plainant which proved that the complainant was throughout present in the proceedings of the case. It may be that on 24-5-1989 due to the morning court the complainant could not attend the court in time when the case was taken up. The complainant could attend the court at 10-00 a. m. and by that time order of the dismissal had already been passed as he had no knowledge about morning court as and when the court fixed the date he was not informed of the morning court. In this view of the matter the order of the learned Magistrate was not in consonance with law.;