SULTAN Vs. STATE OF U P

JUDGEMENT

(1.) THIS revision has been preferred against the order and judgment in Criminal Revision No. 271/89, dated 10-10-1990 passed by XII Additional Sessions Judge, Agra who allowed the revision setting aside the order dated 24-5-1989 passed by LCC-1, Agra in Criminal Case No. 732/88.

(2.) THE brief facts of the present case are that complainant, opposite party No. 2, filed a complaint case before a learned Magistrate, Agra. THE learned Magistrate after recording the evidence of the complainant under Sec tions 700 and 202 of the Criminal Procedure Code took cognizance offences and found a prima facie case under Sections 147, 323, 504 and 506, IPC on 24-5-1989 which was fixed in the case, the complainant was found absent and the learned Magistrate passed the impugned order dated 24-6-1989 dismissing the complaint under Section 245 (2) of the Criminal Procedure Code on the ground that the complainant was absent and he also did not attend the court on the previous two dates and also there being no sufficient ground for the adjournment of the case because there was no evidence on record to establish the charge against the accused.

(3.) I have examined the matter and came to the conclusion that the observation made by Hon'ble Supreme Court is in respect of a compromise application moved before the court concerned. In this case, no compromise application has been moved so far, as such the offence under Section 147, IPC cannot be deemed to be a compoundable offence under the provision of the Criminal Procedure Code. I also perused the record of the case and I came to the conclusion that the order of the learned Magistrate is not sustain able in the eye of law and the Additional Sessions Judge was fully justified in setting aside the order passed by the learned Magistrate. As the learned Magistrate passed the order in the manner as giving of a head note and not giving sufficient material and reasons in support of such a head note. The learned Magistrate made a mention in the order that the complainant was absent and had not attended the Court on the two last dates prior to the date of passing the impugned order and no adjournment application on behalf of the complainant was moved and there was no ground for adjournment of the case. In my opinion the absence of the complainant was no ground for dismissal of the complaint under Section 245 (2), Cr PC which could only be made under Sec tion 249, Cr PC subject to the condition that offence alleged to have been com mitted by accused person is compoundable offence and that offence should not be made a cognizable offence. In the present case, the offence under Section 147, IPC neither being compoundable or non-cognizable offence, therefore the present case would not have been dismissed on the ground of absence of the complainant, under Section 245 (2), Cr PC. The learned Magistrate had no option but to take steps for securing the presence of the witnesses by exercising power under Section 311, Cr PC even if the complainant was not present and even if he was negligent in getting the attendance of his witnesses.