Decided on February 15,1965


Referred Judgements :-



- (1.)THE applicant was prosecuted under Section 21 read with Section 4 (1) of the Mines and Minerals (Regulation and Development) Act, 1957 on a complaint D/- 13-8-1964 hide by the District Magistrate of Allahabad charging the accused of excavating and carrying away silica (glass) sand from a specified area on 26-8-64 without any authority, permission or license, in contravention of Section 4 (1) of the said Act, The case was registered on 7-9-1964 and notice was issued to the accused, who appeared before the trying Magistrate on 21-10-1964. It was admittedly a summons case. Under the provisions of Section 242, Criminal P. C. the accused should have been questioned forthwith as to why he should not be convicted, when he had appeared on 21-101964 before the Magistrate for the first time, but this was not done. The District Magistrate, who was the complainant, was not present. Hence the complaint was liable to be dismissed and the accused acquitted on that very day as provided by Section 247, Criminal P. C. Nevertheless, the Magistrate for no ostensible reason, adjourned the hearing to 28-10-1964 for recording the statement of the accused without any application on his behalf for postponement of the case for recording his statement on some other date. On 28-10-1964 the complainant, District Magistrate, was again absent but the statement of the accused was recorded and he pleaded not guilty. Therefore, the case was directed to be listed on 11-11-1964 for production of prosecution evidence. On 11-11-1964 also the accused was present, but the complainant or the A. P. P. was not present. No application was made by either of them for the adjournment of the case, nor did the accused make any such request. Yet for no rhyme or reason, the Magistrate chose to adjourn the case to 3-12-1964 for leading the prosecution evidence. When the case camp up for hearing on 3-12-1964, the complainant (District Magistrate) was again absent though the A. P. P. was present. However, he did not adduce any evidence on behalf of the prosecution, nor applied for the adjournment of the case. On the other hand, the accused made an application saying that the complainant had been absent on all the dates, hence the complaint be dismissed, as provided by Section 247 of the Code of Criminal Procedure. In that application the accused had also quoted a Division Bench ruling of this Court in State v. Reva Chand 1960 All. L. J. 884 : However, the learned Magistrate instead of dismissing the complaint in the absence of the complainant as welt as for want of prosecution evidence, dismissed the application of the accused by a curious order dated 3-12-1964 containing incorrect facts any adjourned the hearing to 21-12-1964 without any adequate reason. Aggrieved by the aforesaid order of the Magistrate dated 3-12-1964 the accused went up in revision before the Sessions Judge. But the learned Sessions Judge, by a very cryptic order; dismissed the revision summarily, without considering the provisions of Section 247, Cr. P. C. or the Division Bench case of Reva Chand which had also been quoted in the order of the trying Magistrate. Hence this revision by the accused.
(2.)IN the first place the Magistrate had wrongly stated in his order that date (3-12-1964) was filed for appearance of the accused, as a matter of fact the accused had already put in his appearance on 21-10-1964. He again attended the court on 28-10-1964 when his statement was recorded, then on 11-11-1964 when the case was adjourned without any reason whatsoever and lastly on 3-12-1964. But even if 3-121964 had been appointed for the appearance of the accused (which is not at all the case here) the Magistrate should have dismissed the complaint and acquitted the accused, on the failure of the complainant District Magistrate and Anr. (15. 02. 1965 -ALLHC) Page 3 of 7 to put in appearance.
(3.)IN the second place the Magistrate misquoted the opening words of Section 247 of the Code of Criminal Procedure when he stated. If the summons 'have' been issued to the 'complainant,' 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 'reasons' he thinks proper to adjourn the hearing of the ease to some other day. I have underlined (here into ) the words which have wrongly been quoted by the Magistrate Section 247 does not at all provide for issue of summons or conveyance of information to the complainant regarding the date fixed in the case. Yet the trying Magistrate misreading the opening words of Section 247, thought it necessary to inform the complainant regarding the adjourned date because ''no information of today's hearing had been seat to the complainant and as such before further proceeding with this case I deem it proper to inform the District Magistrate. Allahabad to obtain necessary exemption from personal attendance and may authorise D. G. C. (Criminal) or A. P. P. whomsoever he desires to appear on his behalf in this case. Therefore, I think it proper to adjourn the hearing of this case on (to) December 21. 1964 and the District Magistrate, Allahabad, will be informed of this date. He can make an application through D. G. C. (Criminal) or the A. P. P. if he so desire. The application of the accused is rejected.

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