UTLA PUNNIAH Vs. SINGAMANANY SUBBAIAH

JUDGEMENT

(1.) This criminal appeal is preferred by the complainant against the acquittal of the respondent-accused by the Judicial IInd Class Magistrate, Ponnur, invoking section 247, Criminal Procedure Code. The order of the learned Magistrate, dated 26th October, 1964 reads as follows :-

(2.) The complainant preferred a complaint against the respondent before the Judicial IInd Class Magistrate, Ponnur disclosing offence under sections 323, 352 and 506, Indian Penal Code which are all summons cases. The case has been adjourned to 26th October, 1964 for hearing and it so happened that the complainant was absent at 11 A.M. It is the case of the complainant that he came at 11-30 A.M. and by then the Magistrate had pronounced the order. Then he made a copy application, obtained a copy of the order and then preferred the appeal. He had filed an affidavit of the Advocate in addition to his own affidavit explaining the reasons for being unable to be present at 11 A.M. when the Court had started its work. The affidavit of the complainant is to the effect that on the relevant date, 26th October, 1964, he went to Sri P. Seetharama Sarma at about 8 A.M. and engaged him to appear in the case and that the Advocate deputed his junior to go to the Court and file the Vakalat and take necessary steps to issue summonses to the witnesses. The affidavit of the Advocate confirms that the appellant came to him and engaged him. and that he (the Advocate) deputed his junior to go to the Court and take necessary steps for the issue of processes to the witnesses for appearance but it does not show that the appellant was unable to get a bus in time. The affidavit of the appellant further shows that at Bapatla he could not get a bus till 10-30 A.M. and therefore he could not reach Ponnur till about 11 A.M. and by the time he reached the case was already called and disposed of. Therefore the question that falls for consideration in this appeal is whether the Magistrate was justified in acquitting the accused, as the complaint was absent at 11 A.M. when the case was called for hearing. It has also to be considered whether the Magistrate should wait till the end of the day or till such time that the complainant chooses to make his appearance, and then decide the action to be taken. According to Mr. Bheema Raju the Magistrate in this case has not exercised his discretion properly and he should have waited for a reasonable time before he invoked the provisions of section 247, Criminal Procedure Code. In support of his contention he relied on the following decisions.

(3.) The Hyderabad High Court in United Industrial Corporation v. S. M. fftusain, A.I.R. 1955 Hyd. 192. held that