Zila Parishad, Badaun v. State of U. P. — 1971 DIGILAW 86 (ALL)

JUDGMENT Yashoda Nandan, J. - On the 16th of November, 1970, Criminal Appeal No. 1688 of 1968, which is an appeal against an order of acquittal, came up for hearing before our learned brother Mohammad Hamid Hussain, J. He found I himself unable to agree with the view taken by A. K. Kirty, J. in Zuber v. Paras Ram, 1970 A.L.J. 254 and K.N. Srivastava, J. in Zila Parishad v. Dharampal, Connected Criminal Appeals No. 1680 and 1690 of 1968, with regard to the scope of Section 247 of the Criminal Procedure Code hereinafter referred to as the code and consequently, referred this appeal to a larger bench. That is how this case has come up before us. 2. The relevant facts giving rise to this appeal are that the appellant, Zila Parishad, filed a complaint before a First Class Magistrate of Budaun, alleging the commission of an offence under Section 447, Indian Penal Code, by the respondent. On the 19th. of September, 1967, the learned Magistrate recorded the statement of the complainant under Section 200, of the code, and ordered summon to issue for the appearance of the accused on the 4th of October, 1967. On the 4th, of October, 1967, for some reason, not clear from the record of the proceedings, the accused failed to appear. The learned Magistrate, consequently, on the 4th. of October, 1967, ordered fresh summons to issue for the appearance of the accused on the 17th of October, 1967. In the meanwhile, the Additional District Magistrate (Judicial) transferred the case to the court of another learned Magistrate, and the transferee court ordered that the accused be summoned for the 11th of January, 1968. On the 11th of January, 1968, the accused appeared before the learned Magistrate, and applied for bail. The pairokar of the Zila Parishad and its counsel were also present. The learned Magistrate granted bail to the respondent and ordered that the case be put up on the 19th of January, 1968, for recording the statement of the accused. When the case was taken up on the 19th of January, 1968. No one was present on behalf of the complainant, though the accused was present. The learned Magistrate consequently passed a short order as follows :- "Abhiyogi Kai Bar Pukara Gaya To Kewal Abhiyukt Apne Abhibhashak sahit Upshthit Aya. When the case was taken up on the 19th of January, 1968. No one was present on behalf of the complainant, though the accused was present. The learned Magistrate consequently passed a short order as follows :- "Abhiyogi Kai Bar Pukara Gaya To Kewal Abhiyukt Apne Abhibhashak sahit Upshthit Aya. Abhiyogi Ki Or Se Koi Upasthit Nahi Aya Na Unki Up-asthit Chhama Ki Hi Koi Prarthana Ki Gai Hai Wa Abhiyogi Ko Aj Ki Tithi Ki Suchana Bhi Hai Chunki Pichhli Tithi Ke Adesh Patra Par Unke Hastakshar Hai. Atah Abhiyogi Ki Anupasthiti Men Abhiyog Nirast Kiya Jata Hai. Wa Abhiyukt Apradh Se Mukt Kiya Jata Hai. Samay 3-25 Sayankal Ka Ho Chuka Hai." The order, though it does not mention the provision of law was apparently passed by the. learned Magistrate in exercise of power under Section 247 of the Code. 3. Aggrieved by the order of acquittal, the Zila Parishad has appealed to this court. 4. When the appeal came up for hearing before Hon. Mohammad Hamid Hussain, J. reliance was placed on the two decisions of A.K. Kirty, J. and K.N. Srivastava, J., mentioned earlier, in support of the contention that on the 19th. of January, 1968, only the statement of the respondent was to be recorded and nothing was to be done by the complainant, and consequently, the trial court was not legally justified in dismissing the complaint and acquitting the respondent. The decision were relied upon in support of the submission that Section 247, of the Code, does not come into play until the Magistrate has acted in accordance with the provisions contained in Section 242 and 243, of the Code. Mohammad Hamid Hussain, J., was not inclined to accept the view taken in the two decision relied upon. In his view, Sec. 247 is independent of Secs. 242 and 243 of the Code. Hence the reference to a larger bench. Mohammad Hamid Hussain, J., was not inclined to accept the view taken in the two decision relied upon. In his view, Sec. 247 is independent of Secs. 242 and 243 of the Code. Hence the reference to a larger bench. Section 247, of the Code reads as follows:- "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 herein before 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." 5. The reason, which led A.K. Kirty, J., to take the view that Section 247 does not come into play before the Magistrate has complied with the requirements of Secs. 242 and 243 of the Code is contained in the following paragraph of his judgment :- "From Secs. 242 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 had 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 person 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, Sec. 247 does not come into play until the Magistrate has acted in accordance with the provisions contained in Secs. To my mind, Sec. 247 does not come into play until the Magistrate has acted in accordance with the provisions contained in Secs. 242 and 243 of the Code." An analysis of the judgment discloses that the learned judge took the view that Section 247 does not come into play until the Magistrate has acted in accordance with the provisions contained in Secs. 242 and 243 of the Code, because till the provisions of Secs. 242 and 243 have been complied with, the presence of the complainant is not necessary for the commencement of the hearing. K.N. Srivastava, J. has given no independent reasons in his judgment in criminal appeals No. 1689 and 1690 of 1968. He has merely relied upon Zuber v. Paras Ram, A.I.R. 1969 Gujrat 176, and another decision of Gujrat High Court in Kumbhar Dhulabhai Kalubhai v. Paten Ganeshbhai Fulabhai, A.I.R. 1969 Gujrat 176. 6. It is an elementary principle of criminal jurisprudence that investigation and punishment of crime is the duty of the State itself. This is so, so that the injured parties may not take recourse to private vengeance resulting in a break down of law and order and disruption of society. Generally speaking it is in exceptional cases that a private party as a complainant, has any locus standi. Sec. 247 of the code was enacted as a safeguard against private individuals taking recourse to courts administering criminal justice for the purpose of satisfying their personal grudge and causing harassment to the accused by filing frivolous complaints out of mere malice. With a view to ensure that an accused is proceeded against only if the complaint is bona fide and the complainant is diligent, Section 247 enjoins on the complainant the duty of being present not only `on the day appointed for the appearance of the accused' but on all subsequent dates `to which the hearing may be adjourned'. An examination of Section 247 reveals that the Magistrate has to ordinarily dismiss the complaint, if the complainant is absent either' on the day appointed for the appearance of the accused `or any day subsequent thereto to which the hearing may be adjourned'. It is only in cases where the Magistrate for some reason, thinks it proper to adjourn the hearing of the case, that he can refrain from dismissing the complaint. It is only in cases where the Magistrate for some reason, thinks it proper to adjourn the hearing of the case, that he can refrain from dismissing the complaint. Another contingency, in which he may forbear from dismissing the complaint is when acting under the proviso to Sec 247, he dispenses with the attendance of the complainant. Thus, it is not only upon a date to which the hearing of the case has been adjourned that the Magistrate is entitled to dismiss the complaint, but also upon the day appointed for the appearance of the accused. On the day fixed for the appearance of the accused, Section 242 of the Code requires the Magistrate to explain to the accused the particulars of the offence of which he is accused and to ask him why he should not be convicted. If the accused admits that he has committed the offence for which he is accused and shows no sufficient cause why he should not be convicted, the Magistrate is required to convict him in accordance with Section 243 of the Code. If the Magistrate does not convict the accused under Section 243 of the code Section 244 requires him to 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. If it had been the intention of the Legislature that Section 247 of the code will be attracted only when the presence of the complainant becomes necessary after compliance with the provisions of Secs. 242 and 243 of the code, there, was no point in its having enacted in that section that the power will also be exercised on the day appointed for the appearance of the accused. A plain reading of Section 247 of the Code, in our opinion, leaves no room for doubt that the Magistrate can dismiss the complaint on account of the non-appearance of the complainant on the day fixed for the appearance of the accused even though the complainant's presence on that day be not necessary. 7. That the Magistrate is competent to dismiss the complaint and, in fact, ordinarily should do so even before complying with Secs. 7. That the Magistrate is competent to dismiss the complaint and, in fact, ordinarily should do so even before complying with Secs. 242 and 243 of the Code if the complainant is absent on day fixed for the appearance of the accused is further made clear by use of a non-obstinate clause in Sec. 247. The only purpose of the use of the words "the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused" in that section is, to our mind, to render inapplicable the provisions of Secs. 242 and 243 in cases where the complainant is absent on the date fixed for the appearance of the accused. A non obstante clause is primarily used in a statutory provision to indicate that provision shall prevail in disregard of any provision which may stand in the way. It may be mentioned that Secs. 242 and 243 of the Code occur in Chapter XX, which also contains Sec. 247. In our judgment Zuber v. Paras Ram, 1970 A.L.J. 254 and Criminal Appeal Nos. 1689 and 1690 of 1968 have not been correctly decided. We also find ourselves in respectful disagreement with the decision of the Gujrat High Court in Kumbhar Dhulabhai Kalubhai v. Patel Ganeshbhai Fulabhai, A.I.R. 1969 Gujrat 176. We find support in the view we have taken from a Division Bench decision of the Assam High Court in J. C. S. Doloi v. P.C. Deka, I.L.R. 1959 Assam 306. In that decision, it was held by Deka and Mehrotra, JJ. that Section 247 does not lay down that before applying its provisions, the acts prescribed under Secs. 242 and 243 of the code should be done first, even if the complainant is absent. 8. Learned counsel appearing for the appellant, however, urged that Section 217 of the Code empowers the Magistrate to dismiss the complaint either on the date fixed for the appearance of the accused or on any day subsequent thereto to which the hearing of the case is adjourned. He submitted that the hearing of a case starts only when the Magistrate decides, after recording the statement of the accused, not to convict him in exercise of power under Sec. 243. He submitted that the hearing of a case starts only when the Magistrate decides, after recording the statement of the accused, not to convict him in exercise of power under Sec. 243. It was urged that since the statement of the accused had not been recorded in the instant case, the hearing of the case had not started, and, consequently, the date on which the learned Magistrate passed the order dismissing the complaint, was not a date to which the hearing of the case had been adjourned. He further submitted that it was also not a date fixed for the appearance of the accused, as the accused had already put in appearance on the 4th of October, 1967, and the case had been adjourned for the 19th January, 1968, merely for recording the statement of the accused under Section 242 of the Code. According to the learned counsel appearing for the appellant, the 19th January, 1968, was neither a date fixed for the appearance of the accused nor a day to which the hearing of the case had been appealed. We find no substance in this contention. Though the 19th January, 1968, was not a date to which the hearing of the case had been adjourned, it was, in our opinion, clearly a date fixed for the appearance of the accused. After recording the statement of the complainant under Section 200 of the Code, the learned Magistrate, in accordance with Section 204, directed summons to issue for the appearance of the respondent. Schedule V of the Code prescribes the form in which the summons is to issue for the appearance of the accused. It is as follows :- "To of Whereas your attendance is necessary to answer to a charge of (state shortly the offence charged) you are hereby required to appear in person (or by pleader as the case may be) before the Magistrate of on the day of Herein fail not". Dated this day of S, 18. (Seal) (Signature) The purpose of the summons is to require the attendance of the accused, so that he may answer to the charge or accusation against him. Dated this day of S, 18. (Seal) (Signature) The purpose of the summons is to require the attendance of the accused, so that he may answer to the charge or accusation against him. When he appears on the day fixed in the summons, Sec. 242 of the code requires that the particulars of the offence, for which he is accused shall be stated to him and he shall be asked to show cause, if any, why he should not be convicted. The sole purpose of requiring the attendance of the accused on the day fixed for his appearance is, consequently, to obtain his answer to the accusation. When the accused appeared for the first time on the 4th October, 1967, his statement was not recorded in accordance with Section 242 of the Code, and on 11th January, 1968 it was ordered that he should appear for his statement being recorded under Section 242, on the 19th January, 1968. Thus uptill the 19th January, 1968, the only purpose for which the accused had ben directed to appear, had not been complied with. On the earlier date when the accused appeared before the Magistrate, and the learned Magistrate adjourned the case to another date for recording the statement of the accused, he in substance, merely fixed another date for the appearance-of the accused. The mere fact that the accused had physically put in appearance before the court on the 4th October, 1967, did not mean that the subsequent date for the recording of the statement of the accused under Section 249 of the code was not a date fixed for the appearance of the accused. We have no hesitation in holding that the 19th January, 1968, was also a date fixed for the appearance of the accused and the learned Magistrate was consequently legally entitled to dismiss the complaint on that day, unless he chose, in the exercise of his discretion either to adjourn the case to another date, or to proceed with the case after dispensing with the presence of the complainant acting under the proviso to Section 247 of the Code. 9. Learned counsel appearing for the appellant, however, contended that the complainant in the instant case was a public authority. On the 19th January, 1968, its presence was wholly unnecessary. 9. Learned counsel appearing for the appellant, however, contended that the complainant in the instant case was a public authority. On the 19th January, 1968, its presence was wholly unnecessary. It was a case consequently where the presence of the complainant should have been dispensed with by the learned Magistrate and he should have proceeded with the case. It was urged that the only relevant consideration for acting under the proviso to Section 247 is the opinion of the Magistrate as to whether the complainant's attendance is necessary or not. it was submitted that to this aspect of the matter, the learned Magistrate did not apply his mind at all and if he had applied his mind to the only relevant question under the proviso, he could not but have come to the conclusion that it was a fit case in which the presence of the complainant should have been dispensed with. It was urged that the order passed by the learned Magistrate discloses that he was persuaded into not dispensing with the presence of the complainant and dismissing the complaint merely because no application was made for exempting the presence of the complainant. There is force in this contention. For the exercise of the power under the proviso, the law does not require any written or oral application by the complainant. It is for the Magistrate himself, on a consideration of the facts of the case, to decide whether the presence of the complainant is necessary or not, and to exempt his presence if it is unnecessary. It is no doubt true that the proviso gives discretion to the Magistrate, but the discretion has to be judicially exercised on a consideration of the circumstances of the case. When a complaint is filed before a criminal court, as held by A. K. Kirty, J. in Zuber v. Paras Ram, 1970 A.L.J. 254 the complainant seeks justice, and it is the duty of the court not to treat the complaint lightly and dismiss it as such. He must apply his mind to the proviso and decide whether he would exercise his power under the proviso on relevant considerations. This, the learned Magistrate does not seem to have done is the instant case. 10. He must apply his mind to the proviso and decide whether he would exercise his power under the proviso on relevant considerations. This, the learned Magistrate does not seem to have done is the instant case. 10. In view of the fact that sufficient period of time has elapsed since the dismissal of the complaint, we would have refrained from interfering, if the case had been before us in out revision jurisdiction under Section 439 of the Code. This, however, is an appeal against an order of acquittal, and we, consequently, have to see if the order under appeal is either illegal or suffers from any impropriety. In spite of the view taken by us on the legal question with regard to the scope of Section 247 of the code, in the view that we have taken that the discretion was not properly exercised we allow this appeal and set aside the order of acquittal of the respondent. The case will now go back to the learned Magistrate with a direction that he shall proceed in accordance with law. The record of the case will be sent down to the court below at an early date, so that there may he no further delay.