JAGANNATH SAHU Vs. STATE

JUDGEMENT

(1.) THE petitioner has been prosecuted for an offence under Section 186, Indian penal Code on the basis of a report filed by the A. S. I. , Parjang Police Station. The case against him being that in course of the investigation of a case under Section 380, I. P. C. , he obstructed the A. S. 1.--to conduct a search and behaved in a threatening manner On a complaint filed by the A. S. I. the accused was summoned for an offence under Section 186 and the case was posted to 9-1-1965 the Sub Inspector who filed the complaint was however absent on that day The accused filed a petition contending that the summons issued to him did not accompany a copy of the petition of complaint as required under Section 204 (1 B)that this being a summons case the complainant should under Section 244 be examined first before any other witness present in court are examined and that the complainant himself being absent on that day and the Court not having dispensed with his personal appearance, the accused should be acquitted under section 247, Cr. P. C. The learned Magistrate rejected the aforesaid contentions of the accused-petitioner and it is against the said order of rejection, the petitioner has come with this revision.

(2.) MR. S C. Mohapatra, learned counsel for the petitioner raised the following contentions:

(3.) THERE is no dispute about the fact that a case under Section 186. I. P. C. is covered within the ambit of Section 195 (1) (a) of the Cr. P. C. and has to be treated as a complaint case and not as a case based upon police report, though the complainant in this case is himself a police officer Coming to the first contention of Mr. Mohapatra Section 247, Cr. P. C. authorises a Magistrate to dispense with the personal attendance of the complainant where he is of opinion that such attendance is no! necessary and in such cases, the Magistrate can proceed with the case in spite of the absence of the complainant. It appears from the impugned order that the complainant A. S. I. made an application to the Court stating that on account of a sprain on his foot he was unable to attend the Court as there was no conveyance from his office to the Court The Magistrate considered the ground given by the complainant to be reasonable and condoned his absence learned Counsel for the petitioner, however, contended that there is a difference between ''dispensing with personal attendance" and condoning the absence, and that on 9-1-1965 the absence of the complainant was merely condoned, but his personal attendance was not dispensed with as required under Section 247 To my mind, this contention has no force The condonation of the absence of the complainant on the date of hearing amounts to a "dispensing with his attendance" on that day Moreover, nothing has been made out to show that the accused was in any way prejudiced by such absence of the complainant In a case reported in prem Kumar v. State. AIR 1968 Raj 77, a similar contention was raised and it was held that in a summons case merely because some proceedings were taken by the magistrate in the absence of the complainant without dispensing with his personal attendance, the proceedings will not be vitiated unless some prejudice is shown to have been caused to the accused. No doubt the accused filed a petition on that date objecting that as the complainant was absent, he should be acquitted in accordance with the provisions of Section 247 Cr. P. C. But that objection cannot be sustained in view of the very order of the Court where he found that the complainant's absence of that day was justified as on account of his illness he could not attend the Court. This contention of Mr. Mohapatra is therefore rejected.