RANAWAT, C. J. - (1.) THESE are 9 Criminal Appeals Nos. 335, 336, 337, 338, 339, 340, 341, 342 and 343 of 1961. In all these cases the order passed by City Magistrate, Jodhpur, is similar and the orders in all the cases are of the same date, namely, the 21st of March, 1961. THESE cases were instituted on the complaint of the Registrar of the Joint Stock Companies against the Directors of Riyasati Prakashan Ltd. and others for not holding general meeting under the Marwar Companies Act, as amended from time to time. After these cases had been registered and processes were issued to the opposite parties objections were raised regarding certain points of law and non-maintainability of the prosecutions, and the Magistrate fixed these cases on the 21st of March, 1961, for hearing the objections of the opposite parties. On that date, in the beginning the Magistrate remained busy in some other work and did not take the cases, and when Mr. Amrit Raj counsel for the complainant-Registrar appeared in his court, he did not find the Magistrate there and he then went away to attend to other cases in the adjoining courts. In the meantime, the Magistrate took up these cases and he dismissed them for default under Sec. 247 Criminal Procedure Code observing that the complainant and his counsel were absent.
(2.) THE State has come in appeal in all these 9 cases, and it is urged that it was improper exercise of the discretion by the Magistrate to have dismissed these cases and acquitted the accused merely on the ground of the absence of the Registrar in the court. Reference in this behalf is made to Sec. 621-A of the Companies Act, 1956, under which the personal attendance of the Registrar in such cases is dispensed with by the statute. THE counsel for the accused persons have urged that these cases were registered before the amendment of Sec. 621 of the Companies Act and the provision of that section therefore is not attracted to them. It is further urged that in the absence of the complainant-Registrar it was the duty of the Magistrate to have dismissed the complaint and he had no other option. It may be noted that under the proviso to sec. 247 Criminal Procedure Code, it is the duty of the Magistrate to exercise his discretion in judicial manner and in cases where the attendance of the complainant is considered necessary and he fails to appear he has to dismiss the cases under that section. However, in cases where the attendance of the complainant should, in exercise of the Magistrate's discretion, be dispensed with, it is his duty to do so and in such cases if he proceeds to dismiss the complaint the decision cannot be held to be proper. We may in support of this view refer to the decision of this Court in C. R. Alwares Vs. Habool (1 ). It may also be noted that though this case was registered before sec 621 (1 A) of the Companies Act was amended, yet as the order of the Magistrate is of a date subsequent to the said amendment its application is attracted to it. The order is of the 21st of March, 1961, and the amendment is of the 28th of December, 1960. After the amendment, the provision of sec. 621 is applicable to the pending cases as well as the cases registered after the amendment. The objection of the learned counsel for the accused does not appear to be sound that in cases registered before the amendment of sec. 621 (1 A) of the Companies Act, the personal attendance of the Registrar cannot be dispensed with. The amendment came into force on the 28th of December, 1960, and after that date the personal attendance of the Registrar in the capacity of a complainant has to be dispensed with and cannot be insisted upon by the criminal courts in such cases. Obviously, therefore, the order of the Magistrate was in conflict with the provisions of sec. 621 (1a) of the Companies Act and cannot be held to be a proper exercise, of his discretion under sec. 247 Criminal Procedure Code. Moreover, Mr. Amrit Raj has made a statement at the bar that he was vigilant and he attended the court of the Magistrate and he went to attend to other work when he found that the Magistrate was otherwise busy and was not available. He went a second time to the court of the Magistrate at about 2 p. m. and the learned counsel has further stated that he found that the cases had been dismissed. In the order that has been impugned in these appeals, it has been written that the Magistrate was otherwise busy and the cases were not being taken, but later on it has been added that as the counsel and the complainant himself were absent the cases were dismissed under sec. 247 Criminal Procedure Code. This mode of approach does not appear to be proper. The order of the Magistrate being illegal cannot be allowed to stand. The appeals are allowed, the order of acquittal passed by the learned Magistrate is set aside and the cases are remanded to his file with a direction to proceed further from the point he dismissed them. .;