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1954 DIGILAW 172 (KER)

Govindankutty Menon v. Chandy

1954-10-12

KUMARA PILLAI, VITHAYATHIL

body1954
Judgment :- 1. The complainant in C.C. No. 41 of 1953 of the Second Class Magistrate's Court, Kanayannur, is the revision petitioner. He is the Sanitary Inspector of the Ernakulam Municipality. The complaint relates to an offence under S. 4(1) of the Cochin Prevention of Food Adulteration Act, Act XIV of 1109. The case is that tea sold by the third accused in a shop conducted by accused 1 and 2 contained extraneous matter. After the examination of the prosecution witnesses and the defence witnesses the case was posted to 27.3.1954 for final hearing. On that day neither the complainant nor his advocate was present. The learned Magistrate dismissed the complaint under S. 247 of the Code of Criminal Procedure and acquitted the accused. The revision petition is from the order of acquittal. 2. Two grounds were urged in this Revision petition. One is that there is no provision in the Code of Criminal Procedure for adjourning a case for argument after taking the evidence of the complainant and the accused and that, therefore, failure on the part of the complainant to be present on the date to which the case was adjourned for argument cannot attract the Provisions of S. 247, Code of Criminal Procedure. The other ground is that the complainant being a public servant, the proviso to S. 247 would apply to the case and that the learned Magistrate went wrong in not acting under it. 3. So far as the first ground is concerned, it is true that there is no express provision in the Code of Criminal Procedure for posting a case for argument after taking the evidence of the complainant and the accused. S. 245 provides: "245(1) If the Magistrate upon taking the evidence referred to in S. 244 and such further evidence (if any) as he may, of his own motion, cause, to be produced, and (if he thinks fit) examining the accused, finds the accused not guilty, he shall record an order of acquittal. (2) Where the Magistrate does not proceed in accordance with the provisions of S. 349 or S. 562, he shall, if he finds the accuse guilty, pass sentence upon him according to law". (2) Where the Magistrate does not proceed in accordance with the provisions of S. 349 or S. 562, he shall, if he finds the accuse guilty, pass sentence upon him according to law". On the basis of the wording of the section, it is argue that adjourning a case for argument after the evidence of the prosecution witnesses and the defence witnesses is recorded is not a procedure sanctioned by the provisions of the Code. But, there is nothing in the Code which prohibits the Magistrate from posting a case for argument after recording the evidence. 4. The question was considered by the Calcutta High Court in Ramjiwan Rai v. Abilakh Darai(1914 Calcutta 768). It was observed thus in that case: "The principal point on which the District Magistrate has asked for our interference with the acquittal is that the Code makes no provision for argument in a case governed by Chapter 20, and therefore the presence of the complainant at the stage was not required by law. It is true that Chapter 20 of the Code makes no provision for argument in a summons case, but we are not prepared to say that the hearing of the case is concluded with the examination of the witnesses for the parties. As a matter of fact, the case had been adjourned by the Sub-Deputy Magistrate to be heard again for the purpose of the argument and oral evidence being explained to him. In that view the hearing of the case did not end and therefore S. 247, Code of Criminal Procedure, had application to the circumstances of the case". Reference was made to an earlier decision in Mudoosoodun Sha v. Hari Dass Dass & Others (22 W.R. Crl.) page 40. In that case also after examining the complainant and his witnesses the Magistrate adjourned the case for further hearing. The complainant did not appear on the date to which the case was adjourned and for that reason the Magistrate dismissed the complaint. It was held that the Magistrate had the right to adjourn the case for hearing after recording the evidence and that he could therefore dismiss the complaint on the ground of non-appearance of the complainant on the date to which the case was adjourned. 5. It was held that the Magistrate had the right to adjourn the case for hearing after recording the evidence and that he could therefore dismiss the complaint on the ground of non-appearance of the complainant on the date to which the case was adjourned. 5. S. 247, Code of Criminal Procedure, provides: "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 complainant is a public servant and his personal attendance is not required, the Magistrate may dispense with his attendance, and proceed with the case". Under the section, the Magistrate has a power to acquit the accused on the ground of non-appearance of the complainant on any day to which the hearing of the case is adjourned. If there was nothing illegal in adjourning the case for argument after recording the evidence, the complainant was bound to appear on the date to which the case was adjourned, and on his failure to do so the Magistrate was competent to dismiss the complaint under S. 247. There is, therefore, no force in this argument. 6. The second ground is that the complainant in this case being a public servant the learned Magistrate ought to have acted under the proviso to S. 247. Assuming that the Sanitary Inspector of a Municipality is a public servant as defined in S. 3(2) of the Cochin Prevention of Food Adulteration Act, Act XIV of 1109, and that the proviso to S. 247 would apply to the case, the Magistrate had power to dismiss the complaint on the ground of non-appearance of the complainant on the date of hearing of the case. The proviso to S. 247 only says that when the complainant is a public servant and his personal attendance is not required the Magistrate may dispense with his attendance and proceed with the case. It is a discretion given to the Magistrate. It is true that the complainant had already been examined in the case. But, that is no reason why neither he nor his counsel should be present when the case was called. 7. It is a discretion given to the Magistrate. It is true that the complainant had already been examined in the case. But, that is no reason why neither he nor his counsel should be present when the case was called. 7. Learned counsel for the petitioner relied on the decision of this Court in Joseph v. Anchelo Fernandez (1951 K.L.T. 147). In that case the complainant had been already examined and on the date to which the case was posted he did not appear, but his advocate was present. The learned judges held that in view of the fact that the complainant had already been examined and that his advocate was present when the case was called the Magistrate did not exercise his discretion properly in dismissing the complaint on the ground of non-appearance of the complainant. But, in this case, neither the complainant nor his advocate was present when the case was called. In the circumstances, it cannot be said that the learned Magistrate did not exercise his discretion properly in dismissing the complaint. There is no ground to interfere in revision with the order of the court below, and the revision petition is accordingly dismissed. Dismissed.