BHAGWAT SAHAI Vs. SMT. BINA JHA

JUDGEMENT

(1.) This appeal has been preferred by one Bhagwat Sahai, Executive Officer, Municipal Board, Sultanpur and is directed against an appellate order of Sri Indra Singh, the learned Sessions Judge of Sultanpur whereby the appeal preferred by the respondent against the order of a Magistrate I class convicting the respondent of the offences under Sec. 185 read with Sec. 307 and 185 of the U.P. Municipalities Act and sentencing her to pay a fine of Rs. 100.00 on each of the aforesaid accounts was allowed and the conviction of and the sentence awarded to her were set aside.

(2.) The learned Sessions Judge allowed the appeal on the ground that in view of the provisions of Sec. 247 of Crimial P.C. it was obligatory on the learned Magistrate to have acquitted the respondent as the complainant has not appeared had not appeared either on 1-11-1961 or on any of the dates fixed for hearing in the case prior to that.

(3.) The only question that arises for decision in this appeal is as to whether the order of the learned appellate court is sustainable or not. In order to appreciate the question of law, the following facts had better be stated. It appears that on 8-8-1961 the statement of the accused was recorded; two of the prosecution witnesses were examined on 14-9-1961 and the remaining two on 25-9-1961. On 12-9-1961 the statement of the respondent accused was recorded under Sec. 342 of Crimial P.C. On 1-11-1961 two more witnesses were examined on behalf of the defence and an application was filed praying that the accused be acquitted as the complaint was not present on that date or any of the earlier dates. The counsel for the complainant was present in the court and the learned Magistrate made the following order on that application:-