DHULABHAI KALUBHAI Vs. GANESHBHAI FULABHAI

JUDGEMENT

(1.) On 15-4-66 the learned Magistrate before whom the Criminal Case No. 438 of 1966 was pending passed an order below Ex. 1 whereby summons were directed to be issued against the accused for offences under secs. 323 and 342 of the Indian Penal Code. The case was directed to be registered accordingly. As the proceedings of the case show it was then fixed on 28-4-66 for service of the summons to the accused. On that day it appears that the accused was absent though served. At the same time the complainant was also absent. His pleader was however present. Since the complainant was absent when called out and as his learned advocate said that he had no instructions the learned Magistrate passed an order whereby the accused came to be acquitted under sec. 247 of the Criminal Procedure Code. Feeling dissatisfied with that order passed on 28-4-66 by Mr. M. M. Modha Judicial Magistrate First Class Kheralu the complainant has come in appeal before this Court.

(2.) It was pointed out by Mr. Kamdar the learned advocate for the appellant. that on that very day at about 1-00 p m. the complainant did attend the Court and a request was also made to the learned Magistrate for setting aside the order passed by him in the case. In respect of it he made an affidavit before the Taluka Magistrate Kheralu on that very day stating the circumstances in which his coming to Kheralu was delayed and about his having attended the Court at 1-00 p.m. on that very day. The learned advocate who appeared for the complainant has also made an affidavit and has borne out the statements made by complainant in his affidavit In other words it appears clear that on that very day he attended the Court but since before his coming to Court the accused came to be acquitted under sec. 247 of the Criminal Procedure Code nothing could be done in that respect.

(3.) Apart from the reasonableness or sufficiency of the cause of his absence it appears that the learned Magistrate has not properly followed the provisions of law relating to the procedure in respect of trial of summons cases under Chapter XX of the Criminal Procedure Code. Sec. 242 says that under the accused appears or is brought before the Magistrate the particulars of the offence of which he is accused shall be stated to him and he shall be asked if he has any cause to show why he should not be convicted. Then sec. 243 says that if the accused admits that he has committed the offence of which he is accused his admission shall be recorded and if he shows no sufficient cause why he should not be convicted the Magistrate may convict him accordingly. It is thereafter that we find sec. 244 of the Criminal Procedure Code which contemplates the procedure when no such admission of guilt has been made by the accused in the case. Sub-sec. (13 of sec. 244 says that if the Magistrate does not convict the accused under the preceding section or if the accused does not make such admission the Magistrate shall proceed to hear the complainant (if any) and take all such evidence as may be produced in support of the prosecution ... ... . On a perusal of these three sections in Chapter XX of the Criminal Procedure Code it appears clear that 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 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 Now sec. 247 runs thus:-