Boduram v. Udaram — 1962 DIGILAW 279 (RAJ)

Bhargava, J.-This is an appeal under sec. 417(3) of the Code of Criminal Procedure against the order of acquittal passed by the Second Class Magistrate, Degana on 28th November, 1961. 2. On the complaint of Boduram appellant against ten persons under sec. 147, 148, 447, 323 and 504 of the Indian Penal Code, the learned Magistrate started the enquiry as in a warrant case but after recording the evidence of the complainant and his six witnesses he framed charges against eight persons under sec. 447 of the Indian Penal Code only on 8th February, 1961. One of the accused was discharged and proceedings against Mst. Dhapi had already been dropped. On the request of the accused the complainant and his witnesses were recalled for further cross-examination. On 28th February, 1961 Boduram and his two witnesses Chatraram and Bhallaram were cross-examined. Since the other witnesses were not present, the case was adjourned to 23rd March, 1961. After the cross-examination of the complainant was over on 28th February, 1961, he submitted an application for dispensing with his attendance in the court on subsequent dates on the ground that he was an old man of 70-75 years, his eye sight was weak and he had no other male member to look after his family. He requested that his pleader may be allowed to appear on his behalf. The learned Magistrate allowed the application and dispensed with the presence of the complainant. On the next day, Baney Singh and Shobharam complainants two witnesses were present but the case was postponed due to the absence of the learned Magistrate. Again on 14th April, 1961 Shobharam witness was present but the case had to be postponed because the learned Magistrate was otherwise busy. Thereafter the case had to be adjourned five times on account of the absence of the learned Magistrate from the head quarters. On 20th Sept. 1961 in the absence of the complainant and his counsel an order was passed that the complainants witnesses be summoned for further cross-examination and the counsel should keep the complainant present on the next date. No summons or notices appear to have been issued to the witnesses in compliance with the order. On 25th Sept. 1961 complainants Counsel was present and it was ordered that Baney Singh and Shobharam witnesses be summoned again and Birbal witness may also be summoned on his address being furnished. No summons or notices appear to have been issued to the witnesses in compliance with the order. On 25th Sept. 1961 complainants Counsel was present and it was ordered that Baney Singh and Shobharam witnesses be summoned again and Birbal witness may also be summoned on his address being furnished. It was further ordered that intimation may be given to the complainant to remain present on the next date. It may be mentioned here that out of eight accused persons, exemption from personal appearance in the court was granted to four of them on 10th August, 1959. On 20th Feb. 1961 exemption was granted to Kanaram and on 25th October, 1961, Kaluram accused was also exempted from personal appearance. On 28th November, 1961 the complainant as well as his counsel did not appear and the learned Magistrate purporting to act under sec. 247 of the Code of Criminal Procedure acquitted the accused on account of the non-appearance of the complainant. It is against this order that this appeal has been preferred. 3. It is urged on behalf of the appellant that the learned Magistrate adopted a procedure as laid down in the trial of warrant cases because one of the offences was under sec. 147 of the Indian Penal Code and as such sec. 247 of the Code of Criminal Procedure had no application. In support of this contention he has relied on Murlidhar Vs. Shree Krishan(l). On the other hand, the contention of the learned counsel for the respondents is that even though the procedure adopted by the Magistrate in the beginning was that as laid down for the trial of warrant cases, but the charges were framed against the accused under sec. 447 only which could be tried as summons cases and therefore the accused could claim the benefit of sec. 247 of the Code on the day the complainant failed to appear in the court. Reliance is placed on Venkatarama Iyer Vs. Sundaram Pillai. 4. The question therefore, is whether in a case where the Magistrate starts enquiry as in a warrant case but frames charges for an offence which is triable as a summons case provisions of sec. 247 of the Code would apply or not when the complainant fails to appear in the court. Sundaram Pillai. 4. The question therefore, is whether in a case where the Magistrate starts enquiry as in a warrant case but frames charges for an offence which is triable as a summons case provisions of sec. 247 of the Code would apply or not when the complainant fails to appear in the court. Sec. 247 of the Code lays down that : "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, not-withstanding any thing 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." This section occurs in Chapter XX which relates to the trial of summons cases by a Magistrate and obviously it has application to summons cases. There can be no doubt that when a charge is framed against an accused for an offence which is triable as a summons case it becomes a summons case even though the proceedings in the beginning might have been taken as if it was a warrant case for the reason that the complainant might have exaggerated his case or the Magistrate might have wrongly tried a summons case as la warrant case but if the Magistrate after recording the evidence or at any prior stage comes to the decision that only an offence which is triable as a summons case is made out then in my view the accused would be entitled to claim the benefit of sec. 247. In Venkatarama Iyers case relied upon by the learned counsel for the respondents the facts were almost similar. In that case the complaint was under sec. 430 of the Indian Penal Code which was a warrant case and the court tried the accused as in a warrant case but eventually framed a charge under sec. 426 of the Indian Penal Code which could be tried as a summons case. In that case the complaint was under sec. 430 of the Indian Penal Code which was a warrant case and the court tried the accused as in a warrant case but eventually framed a charge under sec. 426 of the Indian Penal Code which could be tried as a summons case. Even after the framing of the charge the Magistrate proceeded with the trial under warrant case procedure, recalling the prosecution witnesses for further cross-examination but eventually acquitted the accused under sec. 247 of the Code of Criminal Procedure on the ground that the complainant was absent on the adjourned date of hearing. Wallace, J. observed that: — "Sec. 247 seems to me 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 I cannot see why this right should be denied to him simply because the Magistrate has adopted a particular procedure, in the trial of the case. Ex-hypothesi in such contingency, the complainant has so exaggerated his case that the Magistrate had to try it as a warrant case, whereas, if the complainant had not exaggerated it, and the Magistrate had tried it as a summons case ab initio, the acquittal on the ground of complainants absence could have been perfectly legal. It was further held that : "The general principle must be that the right of the accused to benefit under sec. 247 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 complainants failure to appear in Court." In another case of Daulatram Vs. Ramkishan(3) the Punjab High Court took a similar view. In that case four persons were tried under secs. 417, 506 and 454 of the Indian Penal Code. The enquiry started as in a warrant case. After the evidence was recorded, charge was framed against only one person under sec. 448 of the Indian Penal Code. On an adjourned date the complainant did not appear either in person or through counsel and the court passed an order directing the file to be consigned to the record room. An application was moved before the High Court under sec. 448 of the Indian Penal Code. On an adjourned date the complainant did not appear either in person or through counsel and the court passed an order directing the file to be consigned to the record room. An application was moved before the High Court under sec. 561-A of the Code of Criminal Procedure. The learned Chief Justice held that : "It is. true that the present case was tried as a warrant case for offences under secs. 417, 506 and 454 of the Penal Code which are punishable with imprisonment for a term exceeding one year. A charge, however, was framed only under sec. 448, Penal Code. A case u/sec. 448 is clearly a summons case for an offence under sec. 448 is punishable with imprisonment for a period of one year. It may be that this case was tried originally as a warrant case but the fact remains that in substance and effect it is a summons case and cannot be dignified to the status of a warrant case. This case is governed by the provisions of sec. 247 of the Code of Criminal Procedure and not by the provision of sec. 259, and it seems to me therefore that when the complainant failed to appear in the court the Magistrate was under an obligation to dismiss the complaint unless he was of the opinion that the case should be adjourned to another date. A person charged with summons case offence is entitled to be acquitted if the complainant is absent (Venkatarama Aiyer Vs. Sundaram Pillai(2), and he cannot be deprived of this right by reason only of the fact that the Magistrate has chosen to adopt a particular procedure." The case referred to on behalf of the appellant is distinguishable. In that case the complaint was made under secs. 426, 447, 448 and 379 of the Indian Penal Code. The Magistrate proceeded to try the case as a warrant case because the offence under sec. 379 I.P.C. could be tried only as a warrant case. On the day the complainant was to produce his witnesses he was absent. The Magistrate therefore, discharged the accused under sec. 259 of the Code of Criminal Procedure. On the next day a fresh complaint was filed which was entertained and processes were issued against the accused. 379 I.P.C. could be tried only as a warrant case. On the day the complainant was to produce his witnesses he was absent. The Magistrate therefore, discharged the accused under sec. 259 of the Code of Criminal Procedure. On the next day a fresh complaint was filed which was entertained and processes were issued against the accused. An objection was taken on behalf of the accused that the order of discharge on the previous complaint should be considered as one of acquittal under sec. 247 of the Code of Criminal Procedure and therefore, they could not be tried again. Venkatarama Iyers case(2) relied upon by the learned counsel for the respondents was also considered by the learned Judge and he agreed with the observations made in that case and held that : "The view taken in that case should be confi ned to a case where an offence triable as a summons case alone is involved." During the course of the judgment the learned Judge also observed that:– "On or before 11th August 1958, when the accused was not accused was discharged, there was no decision of the Magistrate to the effect that the allegation under sec. 379 made against the made out." This is how the learned Judge drew a distinction between the case of Venkatarama Iyer Vs. Sundaram Pillai and the case before him. Since on the date the order of discharge was passed the case was being tried as a warrant case it was held that the accused cannot claim the benefit of sec. 247 of the Code of Criminal Procedure. In the present case however, the Magistrate had come to a decision that the offence under sec. 447 of the Indian Penal Code was only made out and therefore, he framed charges against the accused only under that section. And once the charge was framed for an offence which was a summons case the accused were entitled to claim the benefit of sec. 247 of the Code. It cannot therefore, be said that the Magistrate had no jurisdiction to acquit the accused under sec. 247 of the Code for the non-appearance of the complainant. 5. The next question is whether in the circumstances of the case the learned Magistrate has exercised discretion properly. 247 of the Code. It cannot therefore, be said that the Magistrate had no jurisdiction to acquit the accused under sec. 247 of the Code for the non-appearance of the complainant. 5. The next question is whether in the circumstances of the case the learned Magistrate has exercised discretion properly. As stated earlier on the application of the complainant on 28th February, 1961, the learned Magistrate had dispensed with the attendance of the complainant on further bearings of the case. The complainant had been further cross-examined after the charge and therefore, the learned Magistrate on the grounds alleged before him granted that exemption. Thereafter the case was adjourned seven times because either the learned Magistrate was not at his head-quarters or was otherwise busy. On two dates atleast witnesses of the complainant were present. On 25th October, 1961, it was ordered that the complainant should be informed to appear on the next date. It does not appear from the record that such information was given to the complainant in compliance with this order. Therefore, the complainant could not know whether he had been called to appear on 28th November, 1961 the date on which the accused were acquitted. In a case like this where charges had been framed against the accused some of the prosecution witnesses had also been recalled and further cross-examined and the case had repeatedly been adjourned for no fault of the complainant the Magistrate would have been well advised to either adjourn the case or dispense with the personal attendance of the complainant. In the present case as already observed the learned Magistrate had already dispensed with the personal attendance of the complainant, It is not clear on the record as to why the learned Magistrate required the complainant to be present in court on 28th November, 1961. If arrangement for the appearance of the witnesses for the purpose of their further cross-examination was not made the Magistrate could exclude their evidence and act upon the remaining evidence in the case. But in the circumstances the order of acquittal does not appear to be justified. On the facts therefore, I am of the view that the learned Magistrate did not exercise his discretion properly. 6. I, therefore, set aside the order of acquittal and send the case back to the court of the learned Magistrate for taking further proceedings according to law. 7. On the facts therefore, I am of the view that the learned Magistrate did not exercise his discretion properly. 6. I, therefore, set aside the order of acquittal and send the case back to the court of the learned Magistrate for taking further proceedings according to law. 7. It may be noted that Mst. Dhapi respondent No.3 was wrongly implicated here as proceedings had already been dropped against her before the Magistrate.