Zuber v. Paras Ram — 1969 DIGILAW 180 (ALL)

JUDGMENT A. K. Kirty, J. - -This is an appeal against an order of acquittal dated 27-5-1966, passed by the judicial Officer, Salempur, district Deoria under Section 2-17 of the Code of Criminal Procedure (hereinafter referred to as the Code) . 2. On 7-4-1966 a complaint was filed by Zuber appellant against Parashu Ram, Sudhakar and Keshav respondents. This complaint was ordered by the Magistrate to be put up on 12-4-1966. On that date the Magistrate examined the complainant under Section 200 of the Code. The Magistrate thereafter directed summons to be issued to the accused persons. It appears that the accused persons did not appear before the Magistrate in response to the summons issued to them. In the circumstances, on 10-5-1966 the complainant made a prayer for issuing warrants against the accused persons. This prayer was accepted by the Magistrate and he ordered warrants to be issued for producing the accused persons on 27-5-1966. On 27-5-1966 the Magistrate dismissed the complaint and acquitted the accused persons on the ground that the complainant was absent. The legality and propriety of the order of acquittal dated 27-5-1966 have been questioned in this appeal. Section 247 of the Code reads :- "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 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 when 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." When the case was previously heard by me it was urged on behalf of the appellant that the Magistrate under Section 247 of the Code could not dismiss the complaint until the end of the working day. In other words, according to learned counsel, the Magistrate had to wait the whole clay before proceeding to dismiss the complaint. In support of this contention, reliance was placed on the decision of a learned single judge of this Court in Ram Narain v. Moot Chand, A.I.R. 1960 Allahabad 296. In other words, according to learned counsel, the Magistrate had to wait the whole clay before proceeding to dismiss the complaint. In support of this contention, reliance was placed on the decision of a learned single judge of this Court in Ram Narain v. Moot Chand, A.I.R. 1960 Allahabad 296. In this case the learned judge observed : "A natural meaning should be given to the word 'day' in the phrase "upon the day appointed for the appearance" occurring in Section 247". According to the learned judge, the word 'clay' means the whole of the working hours of the clay and not the moment when the case is called. I had certain doubts as to whether the observation made by the learned judge in the case could be accepted as a reasonable construction of the clause "upon the day appointed for the appearance of the accused or any day subsequent thereto to which the hearing may be adjourned" in Section 247. A number of other decisions were also brought to my notice by the learned counsel for the parties. For the reasons stated below I do not, however, think it necessary to go into this question. 3. Upon an examination of the record of the case it appears that the Magistrate did not act in accordance with Section 242 of the Code. Section 242 runs thus :- "when the accused appears or is brought before the Magistrate, the particulars of the offence of which he is accused shall be stated to him, and he shall be asked if he has any cause to show why he should not be convicted; but it shall not be necessary to frame a formal charge." Sec. 243 of the Code may also be noted in this connection. This section reads - "if the accused admits that he had committed the offence of which he is accused, his admission shall be recorded as nearly as possible in the words used by him; and, if he shows no sufficient cause why he should not be convicted, the Magistrate may convict him accordingly". 4. This section reads - "if the accused admits that he had committed the offence of which he is accused, his admission shall be recorded as nearly as possible in the words used by him; and, if he shows no sufficient cause why he should not be convicted, the Magistrate may convict him accordingly". 4. From Sections 212 and 243 of the Code quoted above it would, in my opinion, be apparent that it is the Magistrate alone who has to act in accordance with these Sections, and the presence of the complainant does not appear to be at all necessary to enable the Magistrate to perform the legal duties cast upon him under these sections. It is evident that if an accused person admits that he has committed the offence of which he is accused, the Magistrate under Section 243 may convict him. In such a case the presence of the complainant would not be needed at all. It is only when the accused persons has denied having committed the offence in respect of which a complaint has been filed or the Magistrate does not convict him under Section 243 that the case has to be actually tried by the Magistrate and for that purpose the complainant certainly has to produce necessary evidence in support of his complaint. To my mind, Section 247 dose not come into play until the Magistrate has acted in accordance with the provisions contained in Sections 242 and 243 of the Code. 5. The above view is supported by some other provisions of the Code. Section 201 (1) empowers the Magistrate taking cognizance of an offence to issue a summons for the attendance of the accused or a warrant for causing the accused to be brought or to appear at a certain time before such. Magistrate or some other Magistrate having jurisdiction. The power to issue process is, however, exercisable only when the Magistrate is of opinion that there is sufficient ground for proceeding. Sub-sec. I-A provides that no summons or warrant shall be issued until a list of the prosecution witnesses has been filed. Under sub-sec. (1-B) , in case of written complaint, the summons or warrant has to be accompanied by a copy of such complaint. Sub-sec. I-A provides that no summons or warrant shall be issued until a list of the prosecution witnesses has been filed. Under sub-sec. (1-B) , in case of written complaint, the summons or warrant has to be accompanied by a copy of such complaint. It will be noticed that although under Section 204 (I-A) the filing of a list of the prosecution witnesses is necessary before any process is issued to the accused person, the complainant is not required to summon any witness at this stage of the proceeding. It may also be noticed that Section 200 occurs in Chapter XVI of the Code which contains provisions in respect of complaints to Magistrates' and Section 204 occurs in Chapter XVII containing provisions in respect 'of the commencement of proceedings before Magistrate's. Chapter XX of the Code contains provisions in respect' of the trial of the summons case by Magistrates'. Section 241 which is the opening section in the Chapter reads : "241-Procedure in summons cases - The following procedure shall be observed by Magistrates in trial of summons cases." Sections 242 and 243 have already been taken notice of and quoted hereinbefore. Notice may now be taken of Section 244 and some other Sections of Chapter XX of the Code. Section 244 (Excluding the provision to sub-sec. (1) reads : "If the Magistrate does not convict the accused tinder the proceeding section or if the accused does not make such admission the Magistrate shall proceed to hear the complainant (if any) and take all such evidence as may be produced in support of the prosecution, and also to hear the accused and take all such evidence as he produces in his defence." 6. It will be seen that under sub-sec. (1) of Section 244, the question of hearing the complainant (if any) and taking of evidence can arise only when the procedure provided under Section 243 has been followed by the Magistrate and the necessity of actually trying the case as such has arisen with the object of ultimately deciding whether the accusations made against the accused person have been proved or not according to law and whether on the facts admitted or proved the accused has been shown to have committed any offence triable under Chapter XX. This will be clear from Sections 242 and 243. This will be clear from Sections 242 and 243. Judging the scope, ambit and applicability of Section 247 in this perspective, the only reasonable conclusion which to my mind, can be arrived at is that the provisions contained in Section 247 becomes effectively operative only when the Magistrate after following the procedure laid down in Sections 242 and 243, finds it necessary to hear the complainant and take evidence under Section 245. The object of Section 247 is to ensure diligent prosecution of the case arising on a complaint by the complainant and to prevent harassment of the accused and not to provide the Magistrate with a handy tool to give short shrifts to complaints as a matter of routine. 7. Mr. Chandra Prakash, learned counsel for the respondents, however, submitted that it is not obligatory on the Magistrate to act in accordance with the provisions of Sections 242 and 243 of the Code and that even without doing so the Magistrate is legally competent to dismiss the complaint and acquit the accused under Section 247, if the complainant is absent. In support of this submission the learned counsel relied on the decision of a Division Bench of the Assam High Court in Jibon Chandra, Sarma Doloi v. Pabin Chandra Deka, I.L.R. 1959 Assam 306. In that case the learned Judges of the Assam High Court appear to have held that it is not obligatory on the Magistrate to act in accordance with Sections 242 and 243 of the Code and that even without doing so the Magistrate is competent to dismiss the complaint and to acquit the accused. With utmost respect, I am unable to accept this view as correct. The learned counsel for the respondents relying on Section 537 of the Code also submitted that in any event the error or omission, if any, was curable and no interference is called for. I do not agree. In judging whether the error, omission or irregularity has in fact occasioned a failure of justice, the question must Le examined with reference to the accused and the complainant both and not the accused alone. When a person files a complaint, he seeks justice. Dismissal of the complaint and acquittal of the accused under Section 247 of the Code is a serious matter. Filing of a second complaint would be barred under Section 403 of the Code. When a person files a complaint, he seeks justice. Dismissal of the complaint and acquittal of the accused under Section 247 of the Code is a serious matter. Filing of a second complaint would be barred under Section 403 of the Code. His only remedy is to file an appeal under Section 417 of the Code, and, in a proper case, 1 think, it would be duty of the appellate court to afford him an opportunity to vindicate his grievance and to bring the accused to the book by producing necessary evidence in support of the complaint filed by him. 8. In the instant case, there is nothing on record to show that the Magistrate had acted in accordance with Sections 242 and 243 of the Code at any stage. This being so, the dismissal of the complaint and the acquittal of the accused persons under Section 247, in my opinion, was wholly illegal, and improper in any event. The order of acquittal must, therefore, be set aside. 9. The appeal is allowed. The order of acquittal dated 27-5-1966 is set aside and the Magistrate is directed to proceed with the case in accordance with the law.