B.R. ARORA, J. - (1.) -
(2.) THIS miscellaneous petition is directed against the order dated August 14, 1991, passed by the Sessions Judge, Pali, by which the learned Sessions Judge dismissed the revision petition, filed by the Labour Enforcement Inspector (Central), Ajmer. The Labour Enforcement Inspector (Central), Ajmer, on January 9, 1989, filed a complaint against non-petitioner No. 2 under Section 22-A of the Minimum Wages Act, 1948 (for short, 'the Act') in the Court of the Munsif and Judicial Magistrate, Bar, for contravention of rule 22 of the Minimum Wages (Mines) Rules, 1956 (for short'the Rules'). It was averred in the complaint that as required under rule 22 of the Rules, the accused did not display on the Notice Board the rates of minimum wages and the name and address of the concerned Inspector. Alongwith the complaint, an application for exemption was, also, moved. The learned Magistrate, by its order dated January, 9, 1989, ordered for the registration of the case, and, also, for issuance of the summons. The complainant was, also, granted exemption from personal attendance and the case was fixed on 1 -4-89 for the appearance of the accused. On 1-4-89, the complainant alongwith his counsel was present, but as the process could not be issued, therefore, the accused was not present. The case was, therefore, adjourned to 29-7-89, for issuance of the summon to the accused and for his appearance. On 29-7-89, also, the complainant alongwith his counsel was present, but the accused was not present as the summon could not be issued and, therefore, the case was again adjourned for the appearance of the accused on 16-10-89. The office did not issue the summon this time also. On 16-10-89, when the case was taken-up by the learned Magistrate, at that time neither the complainant nor his counsel was present and, therefore, the learned Magistrate dismissed the complaint. Dissatisfied with the order dated October 16, 1989, passed by the learned Munsif and Judicial Magistrate, Bar, the complainant preferred a revision petition before the learred Sessions Judge. Pali and the learned Sessions Judge, Pali, by his judgment dated August 11, 1991, dismissed the revision petition on the ground that the order dated 16-10-89. is an appealable one and, therefore, the revision petition is not maintainable. It is against this judgment dated August 14, 1991, passed by the learned Sessions Judge, Pali, that the present miscellaneous petition has been filed. It is not in dispute that against an order of acquittal under Section 256 (1) Cr.P.C, passed in a case instituted upon a complaint, if the High. Court grants special leave to appeal from the order of acquittal on an application made by the complainant in this behalf, an appeal can be filed in the High Court. Sub-section (4) of Sec. 401 of the Code of Criminal Procedure provides that where the impugned order is appealable one but no appeal is-preferred against that order then the revision petition is not maintainable at the instance of the party who could have filed an appeal. The order under Section 256 (1) of the Code of Criminal Procedure is an appealable one and if no appeal is preferred by the complainant then in that case the revision petition is not maintainable. It is an admitted position that though in the present case the petitioner did not file any appeal against the order dated 16-10-89, but presented a revision petition before the learned Sessions Judge, Pali. The crux of the matter in the present case is: whether the order dated 16-10-1989, can be said to be an order passed under Sec. 256 (1) of the Code of Criminal Procedure ? According to Section 256(1) Cr.P.C. if the summons have been issued on the complaint and on the date fixed for the appearance of the accused or any day subsequent thereto, on which the hearing is adjourned and the complainant does not appear, the Magistrate shall acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day. According to proviso appended to Section 256 (1) Cr.P.C. in the case where the complainant is represented by an Advocate or by an officer conducting the prosecution or where the Magistrate is of the opinion that the personal attendance of the complainant is not necessary, the Magistrate, in those cases, may dispense with the personal attendance of the complainant and proceed with the case. It has further been provided that in the case where the complaint has been filed by a public servant, the Court has to examine whether the personal attendant e of the complainant is necessary or not and if it is not found necessary then he can dispense with his personal attendance and proceed with the case. The object of Section 256 Cr.P.C. is to ensure diligent prosecution by the complainant of the case arising on a complaint and to prevent the harassment of the accused. The principle underlying Section 256 Cr.P.C. is that from the first day. on which the case is fixed for hearing and on all subsequent adjourned hearings, the presence of the complainant before the Court is insisted. and if he absents himself on any such date of hearing, the complaint is liable to be dismissed and the accused is entitled to be acquitted unless for certain reasons, the Court exercises its discretion and excuses the absence of the complainant and adjourns the hearing of the case. Where no process has been issued to the accused, the provisions of Section 256 Cr. P.C. will not apply. Before passing an order under Section 256 (1) Cr.P C. acquitting the accused. it is necessary that the ammons for the appearance of the accused are issued. Where, however, the summons have already been ordered to be issued but actually the summons were not issued for the appearance of the accused due to apathy of the office, in that circumstance, if the order of acquittal is made or the complaint is dismissed then the dismissal of the complaint or acquittal of the accused, does not fall within the purview of Section 256 (1) of the Code of Criminal Procedure. In the present case the complainant was granted exemption from the personal attendance and was allowed to appear through his counsel. As per the proviso appended to Section 256 (I) Cr. P.C. it was expected from the Court, before pissing an order dismissing the complaint or acquitting the accused, first, to see whether the personal attendance of the complainant is at all necessary or not. If the personal attendance of the complainant was not necessary then the learned Magistrate had powers to dispense with the attendance of the complainant and to proceed with the case. The learned Magistrate, in the present case, passed an order for the issuance of the summons, but the summons were not issued by the Office for the appearance of the accused and, as such, the order dated October 16, 1989, passed by the learned Magistrate, -dismissing the complaint, cannot be said to be an order passed under Section '256 (l)Cr. P.C. and, therefore, that order was not appealable one and was a nullity. Against that order, no appeal could have been filed and the only remedy available with the petitioner was to file revision petition. In this view of the matter, the order dated October 16, 1989, passed by the learned Munsif and Judicial Magistrate, First Class, Bar, as well as the order dated August 14, 1991, passed by the learned Sessions Judge, Pali, deserve to be quashed and set aside.
(3.) THE alleged offence in the present case has been committed in the year 1988, and the complaint was filed on January 9, 1989, in the Court of the Munsif and Judicial Magistrate, Bar. About four years have elapsed the offence is a petty one punishable with a fine of Rs. 500/- only and, therefore, in the facts and circumstances of the case, no useful purpose will be served in remanding the case to the trial Court for trial because the trial itself will take sufficiently long time and the accused will have to face unnecessary harassment for such a petty offence. Under Article 21 of the Constitution of India, every accused is entitled for a speedy trial, which right of the petitioner will be frustrated. In this view of the matter, I think it proper to quash the criminal proceeding in Criminal Case No. 19 of 1989, pending against the accused respondent, Pukh Raj Tholiya in the Court of the Munsif and Judicial Magistrate Bar. In the result, the order dated August 14, 1991, passed by the learned Sessions Judge, Pali, as well as the order dated October 16, 1989, passed by the learned Munsif and Judicial Magistrate Bar, are set-aside, but, however, the criminal proceedings pending against the respondent No. 2 are quashed and the miscellaneous petition is disposed of as stated above.;