Jammu & Kashmir High Court - Srinagar Bench
Drug Inspector (Shabir Ahmad) vs Managing Director M/S Ramsaon And ... on 4 May, 2018
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
CRR No. 22/2017
Date of order: 04.05.2018
Drug Inspector (Shabir Ahmad Pandith) Vs Managing Director M/S Ramson and others
Coram:
Hon'ble Mr. Justice Sanjeev Kumar, Judge
Appearing Counsel:
For Petitioner(s)/Appellant(s): Mr. M. I. Dar, AAG
For Respondent(s): Mr. Vaneet Kumar, Adv.
Mr. Mir Suhail, Adv.
1. This Revision petition is directed against the order dated 03rd May, 2016 passed by Chief Judicial Magistrate, Bandipora in Complaint File No. 285/Jeem titled Drug Inspector, Bandipora vs/ Managing Director M/S Ramson Remedies and Ors, by virtue of which complaint filed by the petitioner has been dismissed for non-prosecution and the respondents-accused have been acquitted.
2. At the outset, learned counsel for the respondents raised preliminary objections with regard to the maintainability of this petition on the ground that once Trial court exercises its powers Under Section 247 of Cr.P.C and acquits the accused on account of non-appearance of the complainant, the said order is not-amenable to the revisional jurisdiction and the same can only be assailed by way of acquittal appeal as provided Under Section 417 of the Code of Criminal Procedure (Cr.P.C).
3. Heard learned counsel for the parties and perused the record.
4. It would be necessary to first set out the provisions of section 247 of Cr.P.C which reads as under:
"...247. Non-appearance of complainant. If the summons has been issued on complaint, and upon the day appointed for the appearance of the accused, or any day subsequent thereto which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquits the accused, CRR No. 22/2017 Page 1 of 2 unless for some reasons he thinks proper to adjourn the hearing of the case to some other day.
Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is no necessary, the Magistrate may dispense with his attendance and proceed with the case.
The provisions of sub-section (1), shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death."
5. On bare reading of the section 247, it becomes clear that in a summons trial, if the Magistrate has issued summons on the complaint and upon day appointed for the appearance of the accused and or any day subsequent thereto, to which the hearing has been adjourned, the complainant does not appear, the Magistrate would straightway acquit the accused unless he is of the opinion that the personal appearance of the accused is not required on a particular date. The section is clear and unambiguous.
6. Once the accused is acquitted in terms of Section 247, Cr.P.C for whatever reasons, the only remedy is to file Appeal Under Section 417, Cr. P.C.
7. However, while I was in the middle of dictating the judgment, Mr. M. I. Dar, learned AAG submitted that he would withdraw the petition and avail remedy as available under law.
8. In that view of the matter and without going further with the judgment, the submission of learned AAG is accepted and he is permitted to withdraw this petition with liberty to workout remedy as may be available to the petitioner under law.
9. Dismissed as withdrawn.
(Sanjeev Kumar) Judge Srinagar 04.05.2018 Imtiyaz CRR No. 22/2017 Page 2 of 2