LAWS(ORI)-1969-10-23

LAKHIRAM PANSARI Vs. NARASINGH MISRA

Decided On October 03, 1969
Lakhiram Pansari Appellant
V/S
Narasingh Misra Respondents

JUDGEMENT

(1.) IN this revision, complainant is the Plaintiff.

(2.) THE facts in brief, are that on complaint filed by the Plaintiff, the learned Magistrate took cognizance against the accused -opposite party under Section 292 -A, Indian Penal Code on 3.10.1966. After undergoing a number of adjournments, the case stood posted to 24 -3 -1967 without any indication as to the purpose for which it was posted to that date. On 14 -3 -1957, complainant was present, accused was present and a petition for time was filed by the Advocate for the former. The S.D.M. being absent on leave, time was allowed to 13 -4 -1967. On 13 -4 -1967, Advocates for both Bides were present and Advocate for the complainant filed an application for time alleging that the complainant was absent due to some unavoidable reasons. Advocate for the accused pressed for dismissal of the complaint. An order was passed on that day posting the matter to 25.4 -1967 for orders on the point which obviously means on the question as to whether the complaint petition is to be dismissed due to absence of the complainant. On 25 -4 -1967, Advocates on both sides as well as the complainant and accused were present, arguments about the applicability of Section 247, Code of Criminal Procedure was beard and orders passed on 29 -4.1967 acquitting the accused under Section 247, Code of Criminal Procedure for the absence of the complainant on 13 -4 -1967. The Plaintiff challenges the legality of this order.

(3.) SECTION 247, Code of Criminal Procedure empowers a Magistrate to acquit an accused if summons bad been issued on a complaint and on the date appointed for the appearance of the accused or on any day subsequent thereto -to which the bearing may be adjourned the complainant does not appear. The jurisdiction of the Magistrate to act under Section 247, Code of Criminal Procedure arises only in two contingences, Firstly, if the complainant does not appear on the day appointed for the appearance of the accused and secondly, if he does not appear on any day subsequent thereto to which the bearing may be adjourned. obviously, 13.4.1967 was not a date appointed for the appearance of the accused. The order also does not show that the case was posted for bearing to that date. The learned Magistrate purports to assume jurisdiction to act under Section 247, Code of Criminal Procedure by interpreting the word "hearing" occurring in the section to mean a stage after the appearance of the accused when the Court bad to take some action or other for disposal of the case. Adopting this interpretation, he further speculates that on that particular date, i.e., 13 -4 -1967, further steps could have been taken but for the absence of the complainant. He does not say what further steps could have been taken by him. This view of the learned Magistrate is patently erroneous. In a decision of this Court reported in Brundaban Bastia v. Birabar Bastia : 27 (1961) C.L.T. 34. 582, while construing the said provision, it was observed: