KALICHARAN DIXIT Vs. GURDAYAL

JUDGEMENT

(1.) THIS is a reference by the Sessions Judge, Bhind, and it arises Out of the following facts : One, Kishanchand Shastri filed a complaint against a Police officer and a Head-constable for wrongful confinement imder Section 342 of the Indian Penal Code. On the 16th January 1961, the complainant did not appear. The accused were present and they submitted an application to the Court that according to Section 247 of the Criminal Procedure Code, the complaint must be dismissed and the accused he acquitted. The Magistrate dismissed the application and adjourned the hearing of the case to some other date. In passing the order of adjournment, the learned trial Court said that the offence was a cognizable offence. The trial Court also issued a bailable warrant for the appearance of the complainant. Against this order, both the accused went in revision before the Sessions Judge, Bhind. The learned Sessions Judge. is of the opinion that the trial Court should have dismissed the complaint, and, that no adjournment should have been granted.

(2.) FROM the facts stated above two questions arise for consideration: One, whether the trial Court on the non-appearance of the complainant is in every case bound to dismiss the complaint and acquit the accused, or, has it any discretion to adjourn, the hearing of case and fix some other date. Two, whether the order of the trial Court in issuing a boilable warrant for the appearance of the complainant is proper or not.

(3.) WITH regard to the first question, it is laid down in Section 247 of the Criminal Procedure Code that on the non-appearance of the complainant, the court shall acquit the accused. But it is also laid down in the same section that the court is not bound to acquit the accused, and, that for some reason it can also adjourn the hearing of the case to some other date. It is thus obvious that when the complainant does not appear, there, are two courses open to the Court: Ordinarily (and this is the usual thing) the court would acquit the accused. But exceptionally the court may adjourn the hearing to some other day. If a Magistrate in the exercise of his discretion has adjourned the cast,' it cannot be said that he acted wrongly or illegally. It is all a question for Magistrate's discretion.