STATE OF ORISSA Vs. M V APPARAO

JUDGEMENT

(1.) THE Chief Inspector of Factories, Orissa forwarded a complaint to the Sub Divisional Magistrate, Sambalpur Sadar, against the accused for prosecution under Section 92 of the Factories Act, the accused being alleged to have used a building as a factory without the prior approval of plans of the said building by the Chief Inspector of Factories, for not submitting an application in the prescribed form to the Chief Inspector for registration and grant of licence to the factory, and for not depositing the licence fees for registration with the Chief Inspector of Factories. This complaint, which was forwarded on 8 -2 -59, was received by the Sub -divisional Magistrate on 9 -2 -59, and the Sub -divisional Magistrate took cognisance of it on 13 -2 -59. In the forwarding letter accompanying the complaint, the Chief Inspector had observed, Shri B. Panda, Inspector of Factories, Orissa, Cuttack may appear as witness if so required" and nothing was stated as to if the Chief Inspector himself would or would not be a witness. After taking cognisance of the complaint, the Sub -divisional Magistrate issued summons to the accused, but no steps were taken then or at any stage later on to summon the complainant or any other witness for the prosecution. After some adjournments, the Government Pleader entered appearance, but no move was apparently made by the Government Pleader for summoning anybody on behalf of the prosecution. On a particular day fixed for hearing of the case, the Magistrate (to whom the case had been meanwhile transferred) dismissed the complaint after making the following observations,

(2.) THE complaint being made by a public servant in his official capacity, the prosecution amounted to a public prosecution, and the P. P. who appeared in the case could be engaged for conducting such a prosecution, under the rules in the Bihar and Orissa Practice and Procedure Manual, not by the public servant concerned but by the District Magistrate with the sanction of the Legal Remembrancer. Even if the P. P. would have been engaged by the public servant himself, the presence of the P. P. could not, in law, amount to the appearance of the complainant in the case. Section 247 Criminal Procedure Code provides,

(3.) IT has been urged by the learned Government Advocate that the complainant had no knowledge about the different dates of hearing fixed by the Magistrate and no information was sent to the complainant about the date of trial by the Magistrate after taking cognizance, and as such the complainant was not in a position to know as to when he has to appear, and so the complainant's non -appearance could not be penalised. On the contrary, it was urged by Mr. Das that there is no provision in the Code requiring the Magistrate to inform the complainant about the date of commencement of the trial, and that the point urged by the learned Government Advocate was not taken in the appeal memo. The latter part of the objection of Mr. Das is not of much avail in a criminal appeal. As to the first part of the objection that the Magistrate had no duty to inform the date fixed for trial to the complainant, Mr. Das sought to say that there should be no difference between a private complaint and a complaint by a public servant in his official capacity.