KUNHUMAN Vs. KOTHA

JUDGEMENT

(1.) The only question to be decided in this Criminal Appeal is whether the trial Magistrate was right in acquitting the accused under S.247 of the Criminal Procedure Code for the absence of the complainant, when the complainant was but 15 minutes late in reaching the court.

(2.) The appellant, the Panchayat Officer and the Executive Authority of the Arthat Panchayat was the complainant in the lower court. The four respondents were charged for the offence punishable under S.66 (a) and (b) of the Travancore-Cochin Panchayat Act (Act II of 1950) for having unlawfully and without the knowledge or consent of the Panchayat removed a considerable quantity of earth from a public road thereby causing an obstruction in the road as well as a loss to the Panchayat to the extent of about Rs. 100/-. The complaint was filed before the Second Class Magistrate, Talapilly on 4-7-1961. In pursuance of the summons issued from the court accused 1 and 2 appeared in court on 30-9-1961 and 14-10-1961 respectively. For the appearance of accused 3 and 4 the case was adjourned to 8-11-1961. On that day A2 the husband of the 3rd accused and the 1st accuseds surety applied for time on behalf of accused 1 and 3 on the ground that they were unable to attend the court due to illness. The 4th accused was absent. The applications were allowed. However at 11-15 A.M., the case was called and as the complainant was not present at that moment, the court passed an order acquitting the accused under S.247 of the Criminal Procedure Code. The complainant who reached the court by about 11-30 coming to realise that the accused had already been acquitted, moved a petition to have the case restored to the file. As the Magistrate had no jurisdiction to grant such relief the petition was returned. That petition with the order thereon is filed before this court for reference. It is stated in the petition that the complainant lives 16 miles away from the court house and that he could reach the court only by 11-30 being unable to catch the bus at the proper time. The truth of the statement in the petition is not disputed.

(3.) It is argued on behalf of the appellant that the appearance of the complainant during any portion of the day is sufficient compliance with S.247 Criminal Procedure Code and as the complainant had appeared on the day on which the case was posted, the acquittal of the accused on the ground of non appearance of the complainant, is erroneous and without jurisdiction. It is further contended that in any view of the matter the Magistrate has failed to exercise the discretion vested in him judicially in disposing of the case so early in the day when there was other work for the court, and especially on a day when the complainants presence was not necessary to proceed with the case.