- (1.) THIS is a reference made by the Additional Sessions Judge of Sikar, dated the 26th July, 1949.
(2.) THE complainant, Mt. Manni, filed a complaint under sections 313, 446 and 504 of the Penal Code against both the accused Ramakishan and Begulal in the court of First Class Magistrate at Sikar on the 14th of April 1948. After holding an enquiry, the Magistrate framed a charge against both the accused under sec. 341. The accused then applied for an opportunity to cross-examine all the prosecution witnesses. On the 29th of April 1949 the complainant failed to appear and none of the prosecution witnesses, who were summoned to appear for being cross-examined, appeared. The Magistrate thereupon dismissed the case and acquitted the accused. He has not referred to sec. 247 Cr. P. C. in his order but the Sessions Judge has construed his order to be one under sec. 247 Cr. P. C. and he has therefore, recommended that once the trial of the case was begun as that of a warrant case the Magistrate had no authority to apply the procedure of the trial of a summons case and according to him an order of dismissal for default is illegal and should be set aside. It may be observed that there seems a conflict of decisions among some of the High Courts in India on this point whether in a case, of which trial is begun as a warrant case, if subsequently it is found that the case made out against the accused is not a warrant case but is a summons case, provisions of Chapter XX Cr. P. C. can be made applicable to the further proceedings in the case from that point onwards ? In I. L. R. 7 Mad. 454 Mr. Justice Kernan held that "i do not see that there is any thing to prevent the Magistrate, when he ascertains that the warrant case fails, from then and there trying the accused for the minor case in the mode pointed out for trying summons cases. " On the contrary, in 63 I. A. 619 Jwala Prasad J. of Patna High Court has observed that "where the trial of a warrant case has been commenced under chapter XXI of the Criminal Procedure Code, it should be continued and concluded by the procedure laid down in that chapter. It is not open to a Magistrate after commencing the trial of a case as a warrant case to change the procedure in the midst of the trial and conclude it by the procedure prescribed for summons cases in chapter XX of the Criminal Procedure Code. " Similarly in A. I. R, 1927 All. 270 Kendall J. has held that "when once trial has begun according to the provisions relating to warrant cases, it is not open to the Magistrate to alter the section and to convict the accused without framing a charge. " In A. I. R. 1933 Nagpur 192 it has been laid down than "when an enquiry has commenced as a warrant case the proceedings must continue as such, and the procedure of a summons case cannot be adopted to the prejudice of the accused although the case should have been tried as a summons case. " In all these cases it is obvious that by changing the procedure of the trial, the accused were prejudiced in one way or the other on that account. The ratio decidendi of these cases is that when the trial of a case is commenced as that of a warrant case the procedure should not be changed to that of a summons case although the court comes to the conclusion that the offence made out is of the nature of a summons case when the change would be to the prejudice of the accused. In AIR 1923 Mad. 439 the case was tried as a warrant case but the accused was charged with an offence which was of the nature of a summons case and the Magistrate acting under sec. 247 Cr. P. C. acquitted the accused simply because the complainant failed to appear. On these facts, Wallace J. has laid down as follows : - "section 247 seems to be intended to lay down a general principle that a person charged with a summons case offence is entitled in law to an acquittal if the complainant is absent; and this right should not be denied to him simply because the Magistrate has adopted a warrant case procedure in the trial of the case. The case reported in I. L. R. 7 Mad. 454 lays down that when a Magistrate finds that a warrant case charge fails, he is not prevented from then and there trying the accused for a summons case offence, which he finds to have been made out, under the procedure for trying summons cases, which means that when running through the trial of a warrant case, the Magistrate is satisfied that only a summons case charge will stand, the rest of the trial though technically a continuation of the warrant case trial is really a summons case trial. The right of the accused to benefit under sec. 247 Cr. P. C. does not depend on the procedure which the Magistrate chose to adopt and was constrained to adopt by the complaint as laid, but on the nature and class of the offence for which he is being tried at the time of the complainant's failure to appear 'in court. " Consequently he refused to interfere in the case and an order of dismissal for default under sec. 247 Cr. P. C. in a summons case, of which the trial was commenced as a warrant case, was allowed to stand. The present case is on all fours with the case reported in A. I. R. 1923 Mad. 439. The principle laid down in that case appears to be sound. The application of sec. 247 in such cases does not in any way prejudice the interest of the accused and, therefore, the case referred to above where-in it has been held to be illegal to adopt summons case procedure in cases of which the trial is commenced as that of a warrant case, can be distinguished on the ground that in those cases such a change of procedure was held to be detrimental to the interest of the accused, whereas in the present case the interest of the accused cannot be supposed in any way to suffer by an order under sec. 247; on the contrary, this would safeguard the rights of the accused. An accused person is entitled as a matter of right to an acquittal under sec. 247 if the complainant makes default on any day fixed for the hearing of the case, provided it be a case of tie nature of a summons case, and hence, I think the order of the trial court cannot be held to be illegal. The case had to be dismissed under sec. 247 when the complainant or his pleader failed to appear before the court on the date fixed for the hearing of the case. The complainant has not been able to furnish any satisfactory reason for his non-appearance on the day when the case was dismissed. Under the circumstances, there seems no reason to interfere with the order of the trial court which in itself is not illegal. The Sessions Judge has observed that it was the duty of the court to summon prosecution witnesses when a warrant case procedure was being followed. This point regarding production of evidence virtually does not arise when the case has been dismissed for default of the complainant and not for non-production of evidence on his part. But even on the point of production of evidence, a perusal of the record of proceedings of the trial court dated the 21st April 1949 discloses that the complainant's pleader sought an adjournment of the case for the very purpose of enabling him to produce his witnesses. The complainant cannot, therefore, now be allowed to say that he did not undertake to produce his witnesses. However, as has been observed above, this point is not directly connected with the decision of the case before this court. This reference is, therefore, not accepted. . ;