M. Hameedullah Beg, J. - (1.) This is an appeal by the Executive Officer of the Municipal Board of Mathura against the following order of acquittal, dated 5 -5 -1964, passed by a Magistrate: The case was called many a time. Nobody is present from complainant side. The accused is present with his counsel. Hence, the case is dismissed Under Sec. 247 Code of Criminal Procedure. The accused is acquitted. His personal bond is cancelled. It appears that, on the same day, one of the two counsel engaged on behalf of the complainant Executive Officer filed an application before the learned Magistrate which ran as follows: Sir, In this case an application on behalf of the complainant E.O. Vrindaban was given along with the complaint for excusing the personal attendance of the complainant. Two witnesses for prosecution have been examined on the last hearing and the court had no time to examine the third witness. Today's date was fixed for the examination of the third witness who is present today. When the case was called Budhi Jamadar appeared before your honour and submitted that the witness Sanitary Inspector is present in C.M.'s court in case M.Bd. \ Pannai Under Sec. 7/16 P.F. Act and time may be given to call the witness. The Jamadar went to the court of C.M. and brought the witness, but this Court had, by that time, acquitted the accused Under Sec. 247 Code of Criminal Procedure. The order of acquittal is illegal and is a nullity. Your honour can proceed with the case after cancelling the illegal order. The application of the complainant was there for excusing the personal attendance. Secondly, two witnesses were examined and the evidence was enough, at the utmost the prosecution case could have been closed and the accused examined Under Sec. 342 and defence taken and judgment should have been given on merits. The dismissal of the case was not warranted. It is, therefore, humbly prayed that the order of dismissal which is a nullity be ignored and the case proceeded with. On this application, the learned Magistrate passed an order directing that the application be put upon 11 -5 -1964. On 12 -5 -1964, the learned Magistrate passed the following order: The application has no force. Rejected.
(2.) It has been vehemently contended by Mr. R.K. Srivastava, on behalf of the Executive Officer, that the acquittal of the Respondent was illegal and that the above mentioned order passed by the learned Magistrate was not justified by the provisions of Sec. 247 Code of Criminal Procedure. It was pointed out on behalf of the Appellant that an application had been made on 1 -10 -1963 for exemption from personal attendance of the complainant Executive Officer. No order had been passed on this application dated 1 -10 -1963. A glance at the order sheet shows that the prosecution of the Respondent for alleged disobedience of a notice had proceeded without the personal attendance of the Executive Officer and evidence of some prosecution witnesses had been taken but more was to be taken. It was at this stage that the above mentioned dismissal took place for non -appearance of anybody on behalf of the complainant.
(3.) Reliance was placed on two authorities of this Court on behalf of the Appellant Executive Officer. The first is P.N. Khanna v/s. Chief Inspector, 1963 AWR 757 where it was held: The mere fact that in proper cases the Magistrate does not insist upon personal appearance of the complainant and chooses to proceed with the case from day to day without him can be taken to mean that he has exempted him from personal attendance. The next authority relied on is: Bhagwat Sahai v/s. Smt. Bina Jha, 1964 AWR 699 where reliance was placed upon a passage quoted from P.N. Khanna's case (supra): Where a complaint has been filed by a particular public servant, technically the signatory to the complaint will be that public servant, as required by law, but his role may be only of a formal nature and even though he signs the complaint he may know nothing personally about the facts of the case. His presence, therefore, on the hearings of the case is wholly unnecessary and would lead to waste of public time and money. The dismissal of the complaint and acquittal of the accused merely on the ground of non -appearance of the complainant would defeat the very ends of justice. In order to avoid this unjust result, the latter part of Sec. 247 Code of Criminal Procedure provides that the Magistrate, instead of acquitting the accused, may adjourn the case to another date for reasons which he thinks proper. The proviso to the Sec. vests in the Magistrate a still wider discretion that in proper cases where he thinks the presence of the complainant to be unnecessary, he may dispense with his attendance and proceed with the case. The above mentioned authorities were relied upon by Mr. R.K. Srivastava to contend that the acquittal of the Respondent for mere non -appearance of the complainant is illegal. I am unable to interpret the passage relied upon by the learned Counsel as laying down anything different from what Sec. 247 Code of Criminal Procedure itself provides. That provision makes it incumbent on the Magistrate to acquit the accused for nonappearance of the complainant upon the date fixed for the appearance of the accused or on any subsequent date to which the hearing may have been adjourned, unless the Magistrate thinks proper to adjourn the hearing of the case to some other date for "some reason". "Some reason" obviously means a reason which the learned Magistrate thinks proper. In other words, the learned Magistrate has to proceed to acquit the accused unless, in the exercise of his judicial discretion, there is a reason which can justify adjournment of the hearing of the case to another date. After this, the proviso clarifies that the Magistrate can dispense with the personal attendance of the complainant when the learned Magistrate is of the opinion that such personal attendance is not necessary. Obviously, the proviso deals only with the question of personal attendance of the complainant. It does not deal with a case in which there is no appearance on behalf of the complainant at all. In the present case, the order of the learned Magistrate shows that nobody appeared inspite of the fact that the case was called out several times. Even if the personal attendance of the Executive Officer may be deemed to have been dispensed with, the requirement that somebody should appear on behalf of the complainant is certainly not dispensed with by the provisions of Sec. 247 Code of Criminal Procedure.;