Patna High Court
The State Of Bihar vs Ayodhya Sharma Sudhakar And Ors. on 24 July, 1972
Equivalent citations: 1973CRILJ896
JUDGMENT Madan Mohan Prasad, J.
1. This appeal under Section 417 of the Code of Criminal Procedure (hereinafter referred to as the Code) by the State Govenment is directed against an order of acquittal under Section 247 of the Code passed by the Munsif Magistrate of Hazaribagh on the 17th May, 1967.
2. It appears that the Superintendent of Labour. Hazaribagh, after receiving authority in this behalf from the State of Bihar filed a complaint against She respondents under Section 27 of the Industrial Disputes Act for an offence under Section 24 read with Section 23-B of the same Act. The prosecution case was that while an industrial dispute between the workmen and the management of Indo Shahi Glass Company Ltd. was pending adjudication before the Industrial Tribunal, the respondents had instigated the workmen and organised and participated in an illegal strike. Cognize ance of the offence was taken and the case was transferred to Mr. R.K. Sinha, Magistrate on the 12th October, 1965. Processes were issued and service return was awaited. The case was transferred to a Munsif Magistrate thereafter. After a few dates, the service reports of the summonses Issued were received. Their were served on two respondents only. They also did not appear. Bailable warrants of arrests were therefore, issued against all. The reports of such warrants were not received. Non-bailable warrants were then issued but there was no execution report even in respect of them. The case thus was adjourned from day to day awaiting the execution report of warrants of arrest until the 17th January 1967 when it was transferred to another Munsif Magistrate Sri S.D. Sharma. The learned Munsif Magistrate also issued fresh non-bailable warrants of arrest and directed processes under Sections 87 and 88 of the Code to be issued and fixed the 27th February, 1967 for appearance of the accused. On that date the accused were again absent and the execution report of the warrants and the service report of the processes aforesaid were not received. The Presiding Officer was on casual leave, and some other Magistrate acting for him directed reminder to be sent for the service reports and fixed the 5th April, 1967 for appearance of the accused. On the last date again the accused were absent and the service re-Ports had not been received. Again an order was passed by the learned Munsif Magistrate to send an urgent reminder for the same and he fixed 17th May, 1967 for appearance of the accused. On that date again the accused were absent and the service report had not been received. The order-sheet however shows that the complainant also was absent on that date and no nairvi was made on his behalf. For these two reasons he acquitted the accused under Section 247 of the Code, Hence this appeal.
3. There is no dispute with regard to the two important facts viz. that the accused were absent and the execution report of the warrants had not been received and secondly that the complainant was also absent on that date. The argument in this case, rested mainly on the question of law. which is that the learned Magistrate had acted improperly and illegally in acquitting the respondents without having applied his mind to the questions whether the case should have been adjourned and whether the personal attendance of the complainant, who in this case was a public servant, should have been dispensed with in the circumstances of the case. It is urged in this connection that it is quite obvious from the fact that the accused persons had not appeared for nearly two years and that the Court was awaiting the service report of the non-bailable warrants, of arrest issued against them that the presence of the complainant on the 17th May, 1967 was unnecessary because the case could not have proceeded in the absence of the accused and in the absence of the service report. On the other hand learned Counsel for respondents have urged that irrespective of the question as to whether the presence of the complainant was necessary or not and irrespective of the question whether the complainant's attendance could have been dispensed with, the learned Magistrate was bound to dismiss the complaint in view of the mandatory provision of Section 247 of the Code. It has been stated by the learned Counsel of both parties that they have not been able to find any case decided by this Court directly on the point in question. Several decisions of different other High Courts have however been placed before me in support of respective arguments which I shall deal with hereafter. Before I do so I would like to state my own view in the matter.
4. So far as. this case is concerned, there is no dispute that the procedure relating to summons case had to be adopted. It will, therefore, be appropriate to refer to the procedure prescribed under Chapter XX of the Code. Under Section 242 when the case appears or is brought before the Magistrate the particulars of offence have to be communicated to him and he is to be asked to show cause why he should not be convicted. Section 243 of the Code provides for conviction of the accused in case he admits having committed the offence and if he shows no sufficient cause against it. Section 244 provides the procedure for a case where no such admission is made and says that if the accused does not make such admission the Magistrate shall proceed to hear the complainant and take all such evidence as may be produced in support of the prosecution and then hear the accused and take such evidence as he produces. Section 245 provides for recording an order of acquittal where he is not satisfied with the evidence and pass sentence if he finds him guilty. We are not concerned with Section 246 of the Code for the purpose of this case.
5. Section 247 which comes next is as follows:
If the summons has been issued on complaint, and upon the day appointed for the appearance of the accused or any day subsequent thereto to which the hearing may be adjourned the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks proper to adjourn the hearing of the case to some other day:
Provided that where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case.
6. It is quite obvious from the scheme of Chapter XX of the Code that the complainant has to be heard for the first time only after the procedure prescribed in Sections 242 and 243 have been exhausted. In other words so long as the accused do not appear the presence of the complainant in the Court may not be absolutely necessary for the purpose of the progress of the case. Section 247 enables a Magistrate to acquit the accused if he is absent on the day appointed for the appearance of the accused or on any day subsequent thereto to which the hearing may be adjourned. This is. however, subject to two exceptions provided in this section: (1) Unless for some reason he thinks proper to adjourn the hearing of the case to some other day and 081 where he is of opinion that the personal attendance of the complainant is not necessary he may dispense with his attendance and proceed with the case. There is no doubt and it is well settled that Section 247 of the Code is mandatory in nature. It uses the word "shall" and the Magistrate is bound to acquit an accused unless he acts in the manner stated above.
7. The question, however, remains whether at the time of acquitting an accused person for the absence of the. complainant he is bound to consider the question whether there are good reasons for adjourning the hearing of the case to another day and whether personal attendance of the complainant was necessary on that date or he could dispense with his attendance Learned Counsel for respondents have tried to canvass the Point that in view of the section being mandatory a Magistrate does not have to apply his mind to anything other than the question whether the complainant is present or absent. I am afraid, I am unable to accept such a far-stretched interpretation of Section 247 of the Code. No authority directly in point has been cited in support of this proposition.
8. Two cases of this Court have been relied upon in this connection. The first one is AIR 1942 Patna 46 Sudhir Kumar Neogi v. Emperor. In this case, the complainant was absent on a particular day of hearing, the Magistrate had proceeded with the case and ultimately convicted the accused. In a revision against the order of conviction and sentence Fazl Ali, J. (as he then was) held that there was a fatal point against the conviction of the petitioner of that case viz. that the Magistrate should have acquitted the petitioner under Section 247 of the Code on the previous occasion when the complainant was absent because under Section 247 of the Code he could either adjourn the case or acquit the accused but the Magistrate had neither adjourned the case nor acquitted the accused and proceeded with the case. The case, therefore, has no application to the facts of the present case nor can this decision be construed to suggest that the Magistrate has not got to apply his mind to other questions like the propriety of adjourning the case to another date.
9. Another case decided by another learned Single Judge of the Court is the case of Nazir-E-Awaqf v. S. Bashiruddin Ashraf . It appears that the accused had already appeared and had filed an application for the acquittal under Section 247 of the Code on the ground that the complainant was absent. The case was called out and the complainant did not respond and the Magistrate then acquitted the accused. As against this order there was an appeal to this Court. The learned Judge held that in that case the Magistrate had adopted the ordinary course apparently because he had not found any adequate reason to adjourn the case and it could not be said that the Magistrate had exercised his discretion wrongly. This case is again no authority for the proposition that the Magistrate shall not apply his mind to the question whether he should have exercised his discretion by adjourning the case for good reasons. I have already referred to the glaring fact of the instant case that the absence of the complainant did not matter because the service report had not been received and the case could not have proceeded in the absence of the accused even though the complainant had been present. These cases are therefore, of no avail to the respondents.
10. Reference has also been made during the course of argument to another case of this Court State of Bihar v. Deodar Jha. The facts of that case also appear to be different The accused had been acquitted on the merits of the case after consideration of the evidence on record. There was an appeal to this Court against the aforesaid acquittal. One of the arguments raised before the learned Judges who heard the cases was that the Magistrate should not have adjourned the case on the several occasions as he did before recording the final verdict in the case. Banerii, J. who delivered the judgment of the case held that the fact that the Court on those dates adjourned the case showed that he thought it proper to do so. In this case, therefore, there was an exercise of the discretion vested in the Magistrate in favour of the complainant and there was no question of non-application of the mind of the Magistrate to the propriety of exercise of the discretion.
11. Learned Counsel for the respondents have placed reliance on a few other cases which they claim support, their argument. In the case of Emperor v. Laxmi Prasad Tulsiram AIR 1940 Nag 357 : 40 Cri LJ 919, a learned single Judge held that Section 247 of the Code left a discretion to the Magistrate to adjourn the case but this discretion is not to be exercised in an arbitrary fashion. In that case one accused was present the second was on the way to Court and the third accused was alone absent on the relevant date when an order under Section 247 of the Code acquitting the accused was passed. The argument urged before the Court was that the case ought not to have been dismissed but ought to have been adjourned. It was held that there was nothing to show that the discretion, had been exercised arbitrarily and therefore it was not proper to interfere with the exercise of that discretion. This case is of no avail to the respondents, the facts there being very much different from the facts of the Instant case. Another case is State of U.P. v. Lal Bahadur which is also a decision of a learned Single Judge. In this case also the learned Judge stated the law to be as stated in the case of Nagpur referred to above. The learned Judge however, held that in the case before him there was no reason for adjournment at all and therefore the order was not proper. It appears that the facts of this case were also different. The case had been adjourned to a date for arguments and on that date nobody was present on behalf of the complainant and the case was adjourned to another date. The case was further adjourned to vet another date on an application when final arguments were heard on a Particular point and the accused were acquitted by order passed on that date. It also appears that the learned Judge did not consider the earlier case of that very Court Dhanpat Rai v. State where it was held that if the case was not taken up for hearing the absence of the complainant would not justify an order under Section 247 of the Code acquitting the accused. Another case relied on is reported in AIR 1955 Tra-Co. 31 : 1955 Cri LJ 321 T. Govindan Kutty Menon v. Thomas Chandy. The facts of this case were also entirely dissimilar to the facts of the instant case. In that case the prosecution witnesses and the defence witnesses had been examined already and a date was fixed for final hearing. The case was called out on that date but the complainant was absent and the accused were, therefore, acquitted under Section 247 of the Code. On the facts of that case it was held that there was no ground for holding that the Magistrate had not exercised his discretion properly. None of the cases relied on by learned Counsel for the respondents can justify the arguments put forward.
12. From the order passed by the Magistrate in the present case there is no Indication even whether the case was called out and if the complainant had not responded to call, I have been surprised by noticing the fact that not in one but in as many as twentythree orders. Passed before the date of acquittal there is no reference at all to the presence or absence of the complainant in any of them. In other words from the order-sheet alone nobody would be able to know whether on any date the complainant was Present or absent. For the first time complainant's absence has been noted only in the impugned order and It mentions also "no pairvi is being done on behalf of him also." I am unable to understand what pairvi could the complainant make or what steps he had to take when the Court was awaiting the service report of the execution of the warrants of arrest and the processes under Sections 87 and 88 of the Code issued against the accused. It is only when the accused appeared or when the service reports were received that the complainant could have been directed to take some further steps. It was only after the receipt of the service reports that the Court could have proceeded even if it so desired under Section 512 of the Code but naturally and rightly the Court had to await the service report arid could not take that step until it were proved that the accused persons had absconded and there was no immediate prospect of arresting them. That stage having not arisen in the present case, the complainant could neither make any pairvi nor his presence could have been of any worth. It is obvious that it did not occur to the learned Magistrate at all that before acquitting the accused ha should decide as to whether it was a case where there were good reasons for adjourning the hearing. I have not the slightest doubt that there was not only good reason but a compelling reason for the Magistrate to adjourn the case because he was awaiting the service return of warrants of arrest. If he had applied his mind to the question. I have no doubt he would have come to the decision that the case deserved to be adjourned.
13. I may state another circumstance appearing from the record of this case and i.e. that although summonses had been issued as against six accused persons, the same had been served only as against two of the accused, namely, Chandrika Singh and Walter Lakara. The summonses issued against the other accused persons had been returned to the Court unserved and I have already mentioned that the warrants against all the accused persons had been issued and no service return had been received. It is therefore quite clear that unless the warrants of arrest could be executed against the other four accused who had not received summonses they would not know the date for their appearance, they could not be Present in Court on the date fixed and the case could not proceed further. The presence of the complainant on the date fixed was therefore not necessary. The Proper exercise of discretion by the Magistrate would have been to postpone the case to another date.
14. It seems to me that a Magistrate is under a duty, before acquitting the accused in the absence of the complainant under Section 247 of the Code, to apply his mind to the question whether there are any good reasons for adjourning the hearing of the case or for dispensing with the Personal attendance of the complainant. If he finds that there is no reason for either he is bound to acquit the accused and not pass any other order. In other words, if he did neither adjourn nor Proceed with the case he had no option but to acquit the accused. If, however, the Magistrate does not apply his mind at all to the questions aforesaid it would be ignoring the provisions contained In the same section of the Code under which he would be acquitting an accused. It could not, to my mind, have been the intention of the legislature to lay down that a Magistrate is bound to dismiss a complaint as soon as he finds a complainant absent without considering the question regarding the postponement of the hearing or dispensing with the personal attendance of the complainant. If the personal attendance of every complainant was a must in all cases irrespective of any other consideration, the legislature would not have provided for the Magistrate dispensing with such attendance for good reasons. Even the legislature would not have provided for adjournment of the hearing had it not been the intention of the legislature that before acquitting an accused the Magistrate should apply his mind to the question of adjourning the hearing of the case to another date provided there were reasons for doing so. The view which I have taken is supported by different decisions of different other High Courts.
15. In these cases learned fudges of Rajasthan, Himachal Pradesh, Travancore Cochin and Allahabad have taken the same view as I have done and held that it is the duty of the Magistrate to consider and apply his mind to the question before acquitting an accused under Section 247 of the Code, whether the personal attendance of the complainant is necessary. In a case Joharilal v. Ramjilal the learned Judge held that whenever a complainant is absent the Magistrate must consider and the legislature has cast on him a duty to apply his mind to the question, whether the personal attendance of the complaint ant is or is not necessary before he proceeds to acquit the accused under Section 247 of the Code. In the case of Union of India. v. Lachhman alias Punno another learned Judge also held that the Magistrate has to consider whether the Presence of complainant is necessary or not before he acquits an accused under Section 247 of the Code. Reference was made in this case by the learned Judge to several decisions of Hyderabad Kutch, Travancore Cochin and Allahabad. In the case of Joseph v. An Chalo Fernandez AIR 1951 Trav-Co. 25 a Division Bench of that Court also took the same view regarding the question of consideration of the necessity of the presence of the complainant and the duty of the Magistrate in that behalf. In case of Bhagawati Sahai v. Smt. Bina Jha ILR (1964) 2 All 369 a Division Bench of that Court has taken the same view and held that it was perhaps not the intention of the legislature in acting under Section 247 of the Code that an order of acquittal should be made on the around of absence of complainant irrespective of the fact whether his presence is necessary for the further progress of the case. Decisions pointing to the same view need not be multiplied.
16. I am. therefore, satisfied that the order of acquittal under Section 247 of the Code passed by the learned Magistrate is illegal and improper. It is accordingly set aside and the case is remanded to the Magistrate for hearing in accordance with law.