Gyanendra Kumar, J. - (1.) This is an application in revision by the accused, who were charged of an offence u/Para. 9 of the UP Cement Control Order, 1955 read with Sec. 25 of the Industrial (Development and Regulation) Act, 1951. Sec. 27 of the said Act provides that no court shall take cognizance of any offence punishable under that Act except on a report made by a public servant, as defined in Sec. 21 of the IPC. S.I., S.L. Misra filed a complaint on 7 -10 -1964 against the accused persons in the court of the District Magistrate, Moradabad, which was transferred to the court of the SDM Moradabad by the order of the District Magistrate dated 10 -10 1964. On 17 -10 -1964 the SDM ordered the registration of the case and summoned the accused for 7 -11 -1964. On 7 -11 -1964 the accused persons did not put in appearance, with the result that fresh notices were issued against them and the case was ordered to be put up on 24 -11 -1964. On 24 -11 -1964 the summons of the accused had not returned after service; hence fresh summonses were again issued for 8 -12 -1964. On 8 -12 -1964 the summonses returned without service; hence the case was ordered to be put up on 22 -12 -1964, for which date fresh summonses were again issued for the accused. On 22 -12 -1964 both the accused put in appearance and were ordered to be released on bail in the sum of Rs. 500 each. However, it was observed that copies of the requisite papers were not on record for being handed over to the accused; hence the case was adjourned to 24 -12 -1964 for the purpose of issuing the requisite copies of papers to the accused. On 24 -12 -1964 the accused were supplied with the requisite copies, when 11 -1 -1965 was fixed for recording the statements of the accused. On 11 -1 -1965 the accused filed two applications. In the first application the accused contended that the cognizance of the offence had not been validly taken and they requested to be told as to under which sub -section of Sec. 190 Code of Criminal Procedure had the Magistrate taken cognizance of the offence. On this application the court ordered the case to be put up on 12 -1 -1965. The second application, which appears to have been filed thereafter, stated that it was a summons case and that Shri S.L. Misra complainant was absent; so the complaint was liable to be dismissed and accused acquitted. On this application the Magistrate wrote the following order dated 11 -1 -1965: Since the complaint has been filed by the S.I. in his official capacity as a representative of the State and since the State is represented by the APP, I do not think that the dismissal of the case is warranted. Let the case be decided on merits. File. The S.I. may be directed to be present on the next date. Against the above quoted order, the Applicants went up in revision before the Sessions Judge, who dismissed the same by his judgment and order dated 3 -5 -1965 principally on the ground that the case had already been adjourned by the Magistrate to 12 -1 -1965; hence the complaint could not have been dismissed in terms of Sec. 247 Code of Criminal Procedure. The accused have now come up in revision to this Court against the said aforesaid orders.
(2.) It has been strenuously argued on behalf of the accused that inasmuch as the complainant, S.L. Misra S.I. had not appeared on 11 -1 -1965 the Magistrate was bound to dismiss the complaint and acquit the accused. On this point the provision contained in Sec. 247 Code of Criminal Procedure is quite clear But there is a rider added to it viz. "Unless for some reason he (Magistrate) thinks proper to adjourn the hearing of the case to some other day" Let it be noted here that for adjourning a case it is not necessary for the Magistrate to record his reason in writing. The second exception is contained in the proviso to the section, namely, that he can dispense with the attendance of the complainant and proceed with the case even in his absence. I had occasion to deal with a similar question in Hansraj Chawala v/s. D.M. Allahabad, 1965 AWR 642, but the facts of that case were essentially different. In that case the District Magistrate of Allahabad, who was the complainant, had not cared to attend the court on any date and no application had been made: for the exemption of his attendance. Moreover, in Ghawala's case, there had been not less than seven adjournments and every time the Magistrate had adjourned the hearing "without any reason whatsoever" and lastly in order to inform the District Magistrate (complainant) of the next date, advising him to seek exemption from personal attendance. Such adjournments were not considered "to be legal or adequate reason for postponement of the case." In the instant case, the situation is entirely different. Here adjournments were made for the benefit and in order to safeguard the interest of the accused. Moreover, on the first application of the accused persons dated 11 -1 -1965, the Magistrate had already adjourned the hearing of the case to the next day, that is, 22 -1 -1965, with a definite direction that the complainant Sub Inspector shall be present in person on that date. Once the Magistrate had chosen to adjourn the hearing of the case to some other day, for good reasons, the complaint could not have been dismissed and the accused acquitted, simply because the complainant had not appeared on that date, for the mandatory provisions embodied in Sec. 247 Code of Criminal Procedure for acquittal of the accused, in the absence of the complainant is subject to two conditions, that is, (1) adjournment of the hearing of the case and (ii) exemption of the attendance of the complainant. Here the order of adjournment of the case had already been passed by the Magistrate, hence the provision for dismissal of the complaint and acquittal of the accused, in default of the appearance of the complainant, had become inoperative.
(3.) The revision has no force and is accordingly dismissed. The record shall now go back to the trial court as early as possible with the direction that the Magistrate would hear the case with all expedition.;