LALA DHANPAT RAI Vs. STATE

JUDGEMENT

(1.) Lala Dhanpat Rai and three other applicants have come up in revision before this court praying that complaint pending against them be dismissed and they be acquitted.

(2.) The facts of the case are as follows : The four applicants are being prosecuted under Section 9(2) of the U. P. Entertainment and Betting Tax Act, 1937, in the Court of the Sub-Divisional Magistrate, Lucknow. This complaint is filed as required by law by the District Magistrate Lucknow who is a public servant. Summonses were issued to the applicants. When the case came before the Sub-Divisional Magistrate, Lucknow and they appeared on differtent dates before him the District Magistrate who was the complainant in this case did not personally attend the Court of the Sub-Divisional Magistrate on any of the hearings. On 4-6-1958, which was one of the dates fixed for the hearing of this case an application was given by the applicants that the case against them should be dismissed and they should be acquitted under the provisions of Section 247 of the Code of Criminal Procedure. It was contended by them that the complainant was absent and therefore they are entitled to an acquittal under the provision mentioned above. The learned Magistrate adjourned the case to 7-6-1958 for want of time and did not acquit the applicants as prayed by them. It seems that the applicants did not immediately challenge that order of the Magistrate and the case came again before the Magistrate on 7-6-1958. On that date the Magistrate discovered that the necessary formalities were not fulfilled when the applicants were summoned under Section 204 Cr. P. C. Under Section 204 as it stands, amended it is necessary that when summonses are issued to an accused a copy of the written complaint and the names of the witnesses who are to be examined should also be given to him. This was not done when the applicants were originally summoned and so when the Magistrate came to know about it on 7-6-1958, he adjourned the case to 2-7-1958, on the ground that these formalities should be followed. At this stage the applicants went up in revision before the Sessions Judge and as the Sessions Judge did not grant their prayer they have now come up before this court.

(3.) The real question in this case is whether an order of acquittal must be automatically passed under Section 247 Cr. P. C. as soon as a complainant is absent on any of the hearings. It was contended by the Counsel for the applicants that under the words of Section 247 Cr. P. C. there is no option for the Court but to pass such an order. It was, however conceded that such an order could be passed only if the court is present and it cannot be passed in the absence of the court. For example if the presiding officer of the Court fails to attend the court on a particular date and the complainant is also absent then in such a case the accused will not get the benefit of the provisions of Section 247, Cr. P. C. Similarly if the case is not taken up for hearing the absence of the complainant would not justify such an order. The legislature has also modified the operation of this rule in two ways. First it has given the right to the Court to adjourn the hearing of the case for some proper reason. It is true that this proper reason should be recorded in the order-sheet but there is no absolute direction of the law that failure to do so would make the adjournment illegal even if a valid ground for adjournment existed. This question however does not arise in this case for the Magistrate has mentioned the reason for adjournment on both the dates. The second modification made is that where the complainant is a public servant his personal attendance may be dispensed with by the Magistrate and he may proceed with the case. It cannot be denied that the District Magistrate, Lucknow, is not only a public servant but a very busy public servant. The legislature never contemplated that the District Magistrate should dance attendance upon Courts of Magistrate who are his subordinates when prosecutions are launched under those offences which he alone under the law is entitled to prosecute. It would lead to absurd and ridiculous results if the absence of the District Magistrate is to be treated as the absence of the complainant within the meaning of Section 247 Cr. P. C. The District Magistrate will file such complaints against all those who commit a breach of the enactment and the number of such offenders can be very large. The cases of such offenders may also come up before different Courts on the same date and the District Magistrate cannot possibly split himself into several persons. The legislature never intended that the District Magistrate should appear in person in 6uch cases. A prosecution by the District Magistrate in such cases is to be deemed as a prosecution by the state through the agency of the District Magistrate and therefore he is to be represented by those officers who represent the state. It is therefore the Public Prosecutor or tbe Assistant Public Prosecutor whose presence is needed in such cases. Their presence is equivalent to the presence of the District Magistrate.