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1969 DIGILAW 43 (ALL)

Sunder Das Verma v. State of U. P.

1969-01-31

GYANENDRA KUMAR

body1969
JUDGMENT Gyanendra Kumar, J. - Both these revisions involve common questions of fact and law and can be disposed of by a single judgment. They arise out of two complaints filed by Shri B.L. Dhawan, Senior Excise Inspector, Meerut under Section 60(a) of the U.P. Excise Act on the allegation that on June 10, 1963 the accused were found in possession of 2025 liters of rectified spirit in iron drums and others receptacles. 2. The cases were adjourned from time to time for one reason or the other. On March 5, 1964 the accused raised a preliminary objection that the cases in question having commenced on the complaint of the Senior Excise Inspector, they should be dismissed and the accused acquitted on account of the non-appearance of the complainant on that date. The learned Magistrate in his detailed order dated March 5, 1964 found that the Senior Excise Inspector, Shri B.L. Dhawan, who had filed the complaints, had since been transferred from Meerut district and was therefore not present in Court. However, in view of the fact that the accused themselves claimed that the alleged rectified spirit recovered from their possession was really Homoeopathic medicine of different potency and the complainant having already moved the court, as far back as July 30, 1963, that samples from various containers may be sent to the Chemical Examiner, Agra for his test and report, the Magistrate came to the conclusion that the cases materially depended upon the report of the Chemical Examiner. But the court found that the samples had not till then been extracted for being sent to the Chemical Examiner, who was bound to take appreciable time to submit his report, so it would cause unnecessary harassment to the accused if they were required to attend the court on various dates, which may be fixed in the cases from time to time. Hence on March 5, 1964, the Magistrate rejected the prayer of the accused for dismissal of the complaints and ordering their acquittal on the ground of the absence of the complainant and stayed `the proceedings under Section 249 Cr.P.C. without pronouncing any judgment till the report of the Chemical Examiner is received'. The Magistrate further directed the accused to remain on bail already furnished by them. 3. The Magistrate further directed the accused to remain on bail already furnished by them. 3. The report of the Chemical Examiner was received in November 1966, hence on November 15, 1966 the prosecution moved an application praying for sending for the record from the Record Room and re-summoning the accused to stand their trial. By his order dated November 26, 1966 the Magistrate summoned the accused for December 13, 1966 but the cases had to be adjourned for one reason or the other from time to time. On February 10, 1967 the accused reiterated their previous objection that on March 5, 1964 the complaints should have been dismissed and the accused acquitted, on account of the absence of the complainant and that the order passed by the Magistrate date staying the proceedings under Section 249 Cr.P.C. should be construed as an order of acquittal under Section 247 Cr.P.C. inasmuch a Section 249 did not apply to a complaint case. The learned Magistrate by his order dated March 15, 1967 rejected the above pleas of the accused and directed that the trial should proceed. 4. Aggrieved against the aforesaid order of the Magistrate dated March 15, 1967, the accused went up in revision to the learned Sessions Judge, who also dismissed the same by his judgment dated September 20, 1967; hence these two connected revisions by the accused persons. 5. Mr. P.N. Misra, appearing for the revisionists, has raised the same pleas which were pressed by the accused before the courts below and has cited two rulings in support of his case viz. Jai Prakash v. State, 1961 AWR 149 and Public Prosecutor v. Raj Gopala Naidu, A.I.R. 1959 Mad. 356. I shall deal with these authorities a little later. 6. It may be remembered that by his order dated March 5, 1964 the learned Magistrate had specifically rejected the plea of the accused that the complaints were liable to be dismissed and the accused acquitted on account of the non-appearance of the complainant. In fact, after adjourning the case till the receipt of the report of the Chemical Examiner, he had directed the accused to remain on bail already furnished by them. The accused did not care to challenge the aforesaid order dated March 5, 1964 in revision, which thus became absolute. In fact, after adjourning the case till the receipt of the report of the Chemical Examiner, he had directed the accused to remain on bail already furnished by them. The accused did not care to challenge the aforesaid order dated March 5, 1964 in revision, which thus became absolute. As laid down by their Lordships of the Supreme Court, the principle of res judicata also applies to criminal cases. It was, therefore, no longer open to the accused to re-agitate the same matter before the trial Magistrate, by their application dated February 10, 1967, when they again appeared before that court after the receipt of the Chemical Examiner's report. 7. It is true that the order of adjournment of the cases passed by the Magistrate on March 5, 1964 could not fall within the ambit of Section 249 Cr. P. C. because that section only applies .to cases `instituted otherwise than upon complaint', while the trials in question had commenced on complaint by the Senior Excise Inspector. But that does not mean that the aforesaid order dated March 5, 1964 can be construed to be one under Section 247 Cr.P.C. amounting to acquittal of the accused, particularly when the Magistrate had specifically rejected their plea that on account of the absence of the complainant, the complaint should stand dismissed and the accused acquitted. On the other hand the Magistrate had adjourned the hearing of the case till such time that the report of the Chemical Examiner was received. As pointed out by the learned Sessions Judge such an order would clearly fall within the ambit of Section 344(1A) of the Cr.P.C. the material portion whereof runs as under: "(1A). If, from the absence of a witness, or any other reasonable cause, it becomes necessary or advisable to postpone the commencement of, or adjourn any inquiry or trial, the Court may, if it thinks fit, by order in writing, stating the reasons therefor, from time to time, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable........" Mr. P.N. Misra argues that if the learned Magistrate really wanted to, postpone the hearing of the case under Section 344 (1A) Cr.P.C., he should have adjourned it to a definite date. He has not been able to show any authority to the above effect. P.N. Misra argues that if the learned Magistrate really wanted to, postpone the hearing of the case under Section 344 (1A) Cr.P.C., he should have adjourned it to a definite date. He has not been able to show any authority to the above effect. He has, however, placed reliance on two decisions, both reported in 43 (1942) Cr.L.J. The first case is Muhammad v. Emperor (43 Cr. L.J. (1942), 68) and the other Emperor v. Mohd. Ebrahim at page-539 of the same volume. Both these decisions simply lay down that a case cannot be adjourned sine die or indefinitely. In the instant case the learned Magistrate had not adjourned the hearing sine die but had postponed it only for a definite period i.e. till the receipt of the report from the Chemical Examiner. Section 344 (1A) contemplates postponement or adjournment of a case `for such time as it (court) considers reasonable'. In the present case the period of adjournment was not indefinite but was definite and determinable viz., till the receipt of the report of the Chemical Examiner. Hence there was no illegality in the Magistrate's order dated March 5, 1964. 8. As regards the two decisions cited earlier by Mr. Misra, to wit, Jai Prakash v. State, 1961 AWR 149 and Public Prosecutor v. Raja Gopala Naidu, A.I.R. 1959 Madras 356 suffice it to say that the facts of the Allahabad case were entirely different from the present one. In Jai Prakash's case (supra) the Magistrate had adjourned the trial in the absence of the prosecution witnesses to a fixed date with a warning that if the witnesses were not produced on the adjourned date, an order under Section 247 Cr.P.C. would be passed. When the case was taken up on the adjourned date, the prosecution witnesses were again absent, with the result that the Magistrate passed the following order: "No prosecution witness is present today. Let the accused persons be released under Section 249 Cr.P.C." It appears that the Magistrate inadvertently wrote down Section 249 Cr.P.C. in the above quoted order in place of `Section 247 Cr.P.C.'. Let it be remembered that on the previous date the Magistrate had threatened to pass an order `under Section 247 Cr.P.C. if the PWs. did not turn up on the adjourned date. Let it be remembered that on the previous date the Magistrate had threatened to pass an order `under Section 247 Cr.P.C. if the PWs. did not turn up on the adjourned date. Hence it is quite clear that the Magistrate actually meant to pass an order under Section 247, though he mistakingly mentioned `Section 249 Cr.P.C. Desai. J. (as he then was) pointed out that Section 249 Cr.P.C. was not applicable to that case and that the order must be deemed to be one under Section 247 Cr.P.C. amounting to acquittal of the accused. As already noticed the facts of the present case are entirely different. In Jai Prakash's case (supra) the learned Magistrate had actually ordered release or acquittal of the accused; while in the present case the Magistrate had specifically rejected the plea of the accused for their acquittal. Moreover, in Jai Prakash's case the provisions of Section 344(1A) Cr.P.C. were not brought to the notice of the Court. 9. The Madras case of Raja Gopala Naidu is again very different. In that case the Assistant Public Prosecutor had filed a memo before the trial Magistrate stating that a fresh charge-sheet would be submitted against the accused and two of his partners, on the same facts, and therefore he prayed that the proceedings be stayed under Section 249 Cr.P.C. The case was accordingly stayed and a fresh complaint was later on filed against the accused and his two partners. Under these circumstances," it was held that Section 249 Cr.P.C. applied only to a case instituted otherwise than upon a complaint, while Raja Gopala Naidu's case had commenced upon a complaint filed by the Assistant Commercial Tax Officer. In view of the proposed fresh complaint, the prayer for staying the proceedings amounted to withdrawal of the first complaint and, therefore, in a summons case, the only order that could be passed was one of acquittal. So the Madras case is clearly distinguishable from the present one. 10. In the result, both the revisions are hereby dismissed, the judgments and orders of the courts below being maintained. The record will be sent down at a very early date to the Magistrate concerned, with a direction that he will proceed with the trials expeditiously.