MAFATLAL MANILAL SHAH Vs. C C SHAH

JUDGEMENT

(1.) A criminal complaint filed on behalf of the Municipality of Kalol was dismissed and the accused were acquitted on the ground that the complainant was absent when he was called out. On the same day a few hours later the complainant gave an application stating that he was present in the Court and did not hear of his name being called out. He therefore. prayed that the complaint which was dismissed under section 247 Cr. P. C. should be restored but the learned Magistrate rejected the request. Hence this revision application by the original complainant.

(2.) 2. Section 247 Cr. P. C reads as follows:-

(3.) The complainant was present on the day to which the matter was adjourned. The section does not talk of a particular time. The section also does not say that the complainant should be present when being called out. The idea of the matter being called out is however present in Order IX Rule 8 Civil Procedure Code which provides that where the plaintiff does not appear when the suit is called on for hearing the Court shall make an order that the suit be dismissed. A similar wording is not found in section 247 Cr. P. C. The word when called on for hearing which are absent cannot be added in the section. This view was taken by Jackson J of the Madras High Court in Cr. R. C. No. 229 of 1925. But subsequently in Tonkya v. Jagannatha A. I. R. 1926 Madras 1009 two Judges of the Madras High Court have taken a contrary view referring to the provision of Order IX Rule 8 Civil Procedure Code.