STATE OF ORISSA Vs. BIRENDRA KISHORE SAHU

JUDGEMENT

(1.) THIS is an appeal by the State of Orissa against an order dated 9-2-63 passed by the Sub-Divisional Magistrate, Athgarh, acquitting the respondent under section 247, Cr. P. C. , on account of the absence of the complainant on the date of hearing.

(2.) THE Inspector of Supplies, Athgarh, filed a prosecution report against the respondent alleging that he had contravened Section 8 of the Rice Milling Industry (Regulation) Act, 1958, for having installed a Hullar without obtaining prior licence for the same, and had thus made himself liable under Section 13 of the said Act. This report was received by the Sub-Divisional Magistrate on 1-12-1962 and cognizance of the offence was taken on 10-12-1962, and the accused was summoned to appear on 5-1-1963 to stand his trial. As the service return was not been by 5-1-1963, the case was reposted to 23-1-1963 on which date the accused appeared. The substance of the accusation was explained to him and the accused pleaded not guilty and claimed to be tried. The case was then posted to 9-2-1963 for evidence. On 9-2-1963 the accused and one of the prosecution witnesses were present, but as the Inspector of Supplies who filed the complaint, was found absent the magistrate acquitted the accused under Section 247, Cr. P. C. , Sometime after the recording of order under Section 247 the complainant-inspector appeared in court and filed an application for restoration on the ground that his non-attendance was due to reason, that he did not receive any summons regarding the above date. The learned Magistrate, however, rejected the petition on the ground that he had no power to restore the case as the order of aquittal had already been passed. It is against the order of rejection of the learned Magistrate the State has filed this appeal for setting aside the order of acquittal of the respondent.

(3.) LEARNED Standing Counsel contended that in a case of this nature where a public servant happens to be the complainant, the law enjoins that he should be informed of the date of hearing and since no such intimation was given to him the complainant-inspector could not be aware of the date of hearing and thus could not present himself when the case was called out He argued that in such a situation, the Magistrate was not justified in acquitting the accused under Section 247, Cr. P. C.