BODURAM Vs. UDARAM

JUDGEMENT

(1.) This is an appeal under sec. 417(3) of the Code of Criminal Procedure against the order of acquittal passed by the Second Class Magistrate, Degana on 28th November, 1961.

(2.) On the complaint of Boduram appellant against ten persons under sec. 147, 148, 447, 323 and 504 of the Indian Penal Code, the learned Magistrate started the enquiry as in a warrant case but after recording the evidence of the complainant and his six witnesses he framed charges against eight persons under sec. 447 of the Indian Penal Code only on 8th February, 1961. One of the accused was discharged and proceedings against Mst. Dhapi had already been dropped. On the request of the accused the complainant and his witnesses were recalled for further cross - examination. On 28th February, 1961 Boduram and his two witnesses Chatraram and Bhallaram were cross -examined. Since the other witnesses were not present, the case was adjourned to 23rd March, 1961. After the cross -examination of the complainant was over on 28th February, 1961, he submitted an application for dispensing with his attendance in the court on subsequent dates on the ground that he was an old man of 70 -75 years, his eye sight was weak and he had no other male member to look after his family. He requested that his pleader may be allowed to appear on his behalf. The learned Magistrate allowed the application and dispensed with the presence of the complainant. On the next day, Baney Singh and Shobharam complainants two witnesses were present but the case was postponed due to the absence of the learned Magistrate. Again on 14th April, 1961 Shobharam witness was present but the case had to be postponed because the learned Magistrate was otherwise busy. Thereafter the case had to be adjourned five times on account of the absence of the learned Magistrate from the head quarters. On 20th Sept. 1961 in the absence of the complainant and his counsel an order was passed that the complainants witnesses be summoned for further cross -examination and the counsel should keep the complainant present on the next date. No summons or notices appear to have been issued to the witnesses in compliance with the order. On 25th Sept. 1961 complainants Counsel was present and it was ordered that Baney Singh and Shobharam witnesses be summoned again and Birbal witness may also be summoned on his address being furnished. It was further ordered that intimation may be given to the complainant to remain present on the next date. It may be mentioned here that out of eight accused persons, exemption from personal appearance in the court was granted to four of them on 10th August, 1959. On 20th Feb. 1961 exemption was granted to Kanaram and on 25th October, 1961, Kaluram accused was also exempted from personal appearance. On 28th November, 1961 the complainant as well as his counsel did not appear and the learned Magistrate purporting to act under sec. 247 of the Code of Criminal Procedure acquitted the accused on account of the non -appearance of the complainant. It is against this order that this appeal has been preferred.

(3.) It is urged on behalf of the appellant that the learned Magistrate adopted a procedure as laid down in the trial of warrant cases because one of the offences was under sec. 147 of the Indian Penal Code and as such sec. 247 of the Code of Criminal Procedure had no application. In support of this contention he has relied on Murlidhar Vs. Shree Krishan(l). On the other hand, the contention of the learned counsel for the respondents is that even though the procedure adopted by the Magistrate in the beginning was that as laid down for the trial of warrant cases, but the charges were framed against the accused under sec. 447 only which could be tried as summons cases and therefore the accused could claim the benefit of sec. 247 of the Code on the day the complainant failed to appear in the court. Reliance is placed on Venkatarama Iyer Vs. Sundaram Pillai.