M.Wahajuddin, J. - (1.) THE applicant, who happened to be the complainant, has come forward with a prayer that the order dated 23rd August, 1980, passed by the Munsif Magistrate, Dehradun, in Criminal Case No. 1269 of 1980 and the order dated 11-12-1980 passed by the Sessions Judge, Dehradun, in Criminal Revision No. 75 of 3980 be both quashed and the Magistrate may be directed to decide the case on merits after recording further evidence.
(2.) IT would appear that a complaint was filed by the applicant against the opposite parties under Sections 454, 380 and 406, IPC, and the accused persons concerned were summoned under title former two sections. 23rd August, 1980, was fixed for evidence under Section 244, CrPC when the case was called the complainant and his counsel were both absent and the Magistrate dismissed the complaint for want of evidence. The revisional court held that actually the dismissal was under Section 256, CrPC, amounting to acquittal.IT further rejected the complainant's contention that the complaint could not have been dismissed in the early hours and the revision was thus, rejected. The first point that would arise for consideration is whether the dismissal of the complaint was under section 256, CrPC, or under Section 244, CrPC. I may refer to the provisions contained in Section 244, CrPC. It is not disputed that the accused persons had put in appearance. Section 244 (1) CrPC, lays down when in any warrant case instituted otherwise than a police report, the accused appears or is brought before a Magistrate, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution. Section 245 CrPC, then lays down that if upon taking of the evidence referred to in Section 244 CrPC, the Magistrate, for reasons to be recorded, finds that no case has been made out, the Magistrate shall discharge the accused persons. The present case happened to be a warrant case, in which appearance of the accused persons had been secured. When that is the position, Sections 244 and 245, CrPC, would be attracted. Section 256, CrPC, runs as fallows :- "256 (1) If the summons has been issued on complaint, and 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, the Magistrate shall, notwithstanding anything herein before contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day. Provided where the complainant is represented by a pleader or by the officer conducting the prosecution or 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. (2) The provisions of sub-section (1) shall, so far as may be, apply also to cases where the non-appearance of the: complainant is due to his death."
(3.) THAT section deals with summons cases. In fact, in such cases the order of discharge is to operate as an order of acquittal, which will not be the position with warrant case, where if orders are passed before charge is framed it will simply amount to an order of discharge and will not operate as an order of acquittal. I, therefore, hold that the Sessions Judge hearing the revision is wrong in holding that the order passed by the Magistrate is covered under Section 256, CrPC. I next proceed to examine whether the impugned order is bad or illegal. The first point that has been urged is that complaint could not be dismissed in the early hours. Reliance in that connection is placed upon the case of Ram Narain v. Mool Chand, 1960 AWR 597, in which Hon'ble A. N. Mulla, J., observed that the order of acquittal should be passed at the end of the day. The learned Judge dissented from the Madras ruling of a Division Bench reported in Tonkya v. Jagannath, AIR 1926 Mad. 1009. Reliance was further placed in that case upon the case of Ram Shanker v. Ram Narain, AIR 1928 Alld. 301 and Badri Prasad v. Ambika Prasad, AIR 1941 Oudh 91. With greatest respect I may observe that both these cases related to civil matters, to which Civil Procedure Code applied. The Criminal Procedure Code is a complete Code and naturally the provisions contained therein are to be considered according to the scheme of the CrPC. Cases of CPC may not be much helpful. I may also observe that the facts of that case were peculiar and it was manifest that the greatest injustice has been caused. Firstly, the Magistracy in those days was 'not under the District Judge and the Executive Magistrates functioned as Magistrates. The habit of late sitting was not uncommon. In that case on fact ill was established that the complainant had actually come to the court and he had also brought his witnesses, who were present. What transpired was that on account of an attack of hernia he could not appear before the court when the case was called and the court, without further waiting for the complainant, in a hurry dismissed the complaint. The facts of the present case are distinguishable. I have perused the affidavit given In support of the application. The complainant has nowhere stated that he was actually present at any stage. What the applicant has stated is that the Magistrate used to sit some what late after 11 or 12 O'clock while on that date the case was called early. It has also not been stated in the application what prevented the complainant in not coming earlier as to be present when the case was called. If a law is laid down that no case will be dismissed in default upto 4 P.M. and the court will have to wait for the complainant, the result will be that unscrupulous parties will be able to secure adjournment by waiting upto 4 P. M and then appearing before the court. The case naturally cannot be taken up beyond court hours and an adjournment will result to the harassment of the accused persons, while prosecution is not to take the place of persecution. There is a later pronouncement of Andhra High court of Division Bench in the case of P. Thimmappa v. P. Chirms Thimmappa (?) AIR Andhra Pradesh 222 in which relying upon the Madras view and considering some rulings on the point it was held that when the case is called and the complainant does not appear the court can dismiss the complaint under Section 447 CrPC (old) equivalent to Section 256 CrPC (new). The matter also arose for consideration in the case of Naresh Prasad v. Mahavir Singh, 1960 AWR 597 and observation made in that case give the genesis of the matter. 'A reasonable view has to be taken and it depends upon the circumstances of each case, whether the Magistrate has acted reasonably in passing the order or not and the High Court, when it finds that in any particular case the Magistrate acted unreasonably and has dismissed the complaint in a haste resulting into injustice, will set aside the order.';