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1975 DIGILAW 184 (RAJ)

V. N. Soral v. Mohan Poonamia Jain

1975-11-14

P.D.KUDAL

body1975
P.D. KUDAL, J. —As common questions of law are involved in both these appeals, they are being disposed of by this single judgment. 2. The relevant facts, in brief, are that two complaints under sec. 27 of the Industrial Disputes Act were filed by the complainant V. N. Soral against Mohan Poonamia and Prem Kishan on 11-1-1968. On 12-1-1968, after recording the statement of the complainant, notices were ordered to be issued to the accused persons. The final order dated 7 5-1971. Since 121-1968, the complaints could not proceed on account of one reason or the other. On 7 5-1971, the complainant and his counsel were absent when the case was called for hearing. The accused persons were also absent. No witness on behalf of the complainant was present. The learned Magis-trate, therefore dismissed both the complaints under sec, 247 Cr.P.C. (old), and acquitted the accused-persons as these were summons trial cases. The complainants thereupon filed these appeals after obtaining the leave as envisaged under sec. 417(3), Cr.P.C. 3 It was contended on behalf of the complainant-appellants that the learned trial Magistrate did not exercise the discretion judiciously in dismissing the complaints. It was also contended that in these summons trials, the statements of the accused persons had not been recorded under sec. 242, Cr.P.C, and under such circumstances, even if the complainant was absent there was no occasion for the learned trial Court to have dismissed the complaints under sec. 247, Cr.P.C. It was, thus, contended that the discretion so vested in the trial Court has been used capriciously, and not in a judicial manner. 4. On behalf of the accused-respondents, it was contended that the complainant and his counsel were absent, and that there was no option left with the learned trial Court but to dismiss the complaints, as neither the prosecution witnesses were present, nor the complainant or his counsel, and that no request was made before the trial Court for adjourning the case on account of the absence of the complainant. 5. The contentions of the learned counsel for the parties have been considered, and the record of the case perused. 5. The contentions of the learned counsel for the parties have been considered, and the record of the case perused. From the perusal of the record, it is evidently clear that the complainant did turn up on the same day, and filed an affidavit to the effect that he appeared before the trial Court at 10.50 a.m., and that the complaint had been dismissed prior to this 6. The proviso to sec. 247, Cr.P.C. (old) reads as follows :— "Provided that where the Magistrate is of opinion that the personal attendance of the complain ant is not necessary, the Magistrate may dispense with his attendance and proceed with the case." 7. The learned counsel for the appellant contended that the discretion so vested in the Magistrate in view of this proviso has not been judiciously exercised. In G. R. Alwares vs. Babool(l), it has been held that before acquitting the accused, on the default of the complainant it is the duty of the Magistrate to see whether the personal attendance of the complainant is necessary on that date. When the complainant has finished all his evidence, where the evidence of the accused is proceeding and where the complainants counsel is also present, it is not a sound judicial discretion of the court to dismiss the case of the complainant and acquit the accused without taking it into consideration whether the presence of the complainant is necessary. 8 In the State vs. Riyasati Prakash (2), it has been held that under the proviso-to sec. 247 Cr.P.C. it is the duty of the Magistrate to exercise his discretion in a judicial manner and in cases where the attendance of the complainant is considered necessary and he fails to appear, he has to dismiss the cases under that section. However, in cases-where the attendance of the complainant should in the exercise of the Magistrates discretion, be dispensed with, it is his duty to do so and in such cases if he proceeds to-dismiss the complaint the decision cannot be held to be proper. 9. In Johrilal vs. Ramjilal (3), it has been held that sec. 247, Cr.P.C. is not intended to serve as a short-cut for the trial courts to dismiss cases by snap judgments. 9. In Johrilal vs. Ramjilal (3), it has been held that sec. 247, Cr.P.C. is not intended to serve as a short-cut for the trial courts to dismiss cases by snap judgments. The power to dismiss the case is undoubtedly there when the complainant in a case instituted on a compliant is absent in a summons case, but that power must be judicially exercised; and, it must be seen and considered having regard to the circumstances of a given case whether the presence of the complainant was essential on that date to proceed with the case or it could be dispensed with. 10. In Municipal Council, Jaipur vs. Rameshwarlal (4), it has been held that the power to dismiss a complaint under sec. 247, Cr.P.C. should be exercised judiciously. In K. Dhulabhai vs. P. Ganeshbhai (5), it was held that in view of secs. 242, 243 and 244 of Criminal P.C, the Magistrate can only proceed with the hearing of the case in the sense to record the evidence of the complainant not only after the accused is present before the Court but after his plea is recorded in respect of the allegations levelled against him in the case. It is then that he has to consider as to whether the absence of the complainant justifies the Court to pass an order of acquittal of the accused under sec. 247 of the Criminal Procedure Code. 11. In these two cases, though the complaint was filed as early as on 11-1-1968, the plea of the accused-persons had not been recorded till 7-5-1971. The cases went on being adjourned on one ground or the other, either on the request of the complainant, or on the request of the counsel for the accused. The statement of the accused persons had not been recorded under section 242, Cr.P.C. Under these circumstances, it cannot be said that even if the complainant was present on 7-5-1971, the case could not have been proceeded with. The learned trial Court ought to have exercised its discretion in a judicious manner. A bare perusal of the order would show that the learned Magistrate wanted to get rid of these complaints when he observed that these cases have been pending for two years with no progress. The dismissal of these complaints, under these circumstances, cannot be, but capricious and arbitrary. A bare perusal of the order would show that the learned Magistrate wanted to get rid of these complaints when he observed that these cases have been pending for two years with no progress. The dismissal of these complaints, under these circumstances, cannot be, but capricious and arbitrary. The order of acquittal recorded by the learned trial Court under sec. 247, Cr.P.C., therefore, deserves to be set aside. 12. The other important aspect, which has to be examined, is whether after the lapse of this much of time, the case should be remanded to the learned Magistrate for further hearing. The complaints were instituted as early as 11-1-968, and were dismissed due to the absence of the complainant on 7-5-1971. The complainants were under sec. 27 of the Industrial Disputes Act on the allegations that there was certain exhortation to the workmen to go on strike. 13. In Municipal Council, Jaipur vs. Rameshwarlal(4), it was held that where the trial had already prolonged and the accused has been harassed by numerous adjournments the Court may refuse to set aside acquittal. In State of Bihar vs. Hira Lal Kejriwal (6), it was held that in the circumstances, the Supreme Court would be justified in not exercising its discretionary jurisdiction under Art. 136 as public interest did not require that stale matter should be resuscitated. In State of Bihar vs. Kripa Shankar(7), it has been held that where the High Court had wrongly set aside a conviction under sec. 29, Industrial Disputes Act for committing a breach of settlement, the Supreme Court refused to interfere with that order under Art. 136 in view of the fact that all disputes between the parties had been settled afresh and the workman concerned had been reinstated. Public interest does not require that a stale matter should be resuscitated. 14. In view of the circumstances narrated above, though, the order of acquittal recorded by the learned trial Magistrate was not legally sound, there does not appear to be sufficient reasons for interference with the order, as the matter has become stale, and public interest does not require such an interference at such a belated stage. Therefore, it appears expedient and necessary in the interests of justice to deadline to interfere with the order of acquittal. 15. For the reasons stated above, the appeals are accordingly dismissed.