PARSA Vs. MST. PARSINI

JUDGEMENT

(1.) ON a private complaint by Parsa, the Respondents were prosecuted under Sections 494/497/109, I. P.C. Charges for those offences were framed against them by the trial Magistrate on 30 -10 -1952. The accused wanted Parsa, Phagu and Gomti prosecution witnesses to be called for further cross -examination and an order under Section 256 Code of Criminal Procedure was accordingly made. Those witnesses were required to appear on 12 -11 -1952, but on that date Phagu and Gomti did not turn up. They were ordered to be summoned through the police for 18 -11 -1952. On 18 -11 -1952 Phagu and Gomti were present but as the Magistrate had no time to take up the case, it was adjourned to 16 -12 -1952. The witnesses were asked to come on that date. On 16 -12 -1952 no witness of the complainant turned up and he was directed to produce his witnesses himself on 6 -1 -1953. On 6 -1 -1953 no body from either side put in appearance nor did the witnesses The Magistrate thereupon recorded the following order "Case called several times. The parties are not present. Hence the case is dismissed in default of non -appearance of the complainant. The accused are discharged. File be consigned." The word 'non -appearance appears to have been written by inadvertence. It ought to have been 'appearance'. The learned Additional Sessions Judge Patiala who was moved by the complainant on the revision side has submitted the case to this Court for quashing that order.

(2.) I have already held in Anr. case that the term dismissed for default' is unknown to the Code of Criminal Procedure, that no criminal case can be dismissed for default of appearance of any party or witness and that Magistrates should not indulge in that slipshod method of disposing of cases The trial Magistrate has committed Anr. blunder in making an order of discharge after the accused had been charged. The proper order in that case should have been one of acquittal if otherwise justified, and in making an order of acquittal, the merits of the case, as they stood on the date of the order, should have been considered and discussed. The Magistrate did not at all apply his mind to the merits. He perhaps forgot that the accused had already been charged of account of the presence of prima facie evidence against them I may also point out that the complainant could not under the Code of Criminal Procedure be required to produce his witnesses himself. It was the duty of the Magistrate to exercise his powers under the Code to have the witnesses before him for further cross -examination. The order under reference is in my view' a reckless one which it is not possible to sustain. I, therefore, accept the reference and quash the Magistrate's order. The case will go back to him so that he may proceed with it in accordance with law from the stage preceding the discharge order. Para complainant who is present before me has been directed to appear in his Court on 24 -7 -1953.