STATE OF RAJASTHAN Vs. HANUMAN

JUDGEMENT

(1.) This appeal has been filed by the State after obtaining leave to appeal under Section 379(3) Cr. P.C. It is directed against the judgment dated 15th February, 1977 passed by the Munsif Magistrate, Deed-wana in criminal case No. 56/1976. In the criminal case aforesaid, the respondent Hanuman was being prosecuted for the offence under Section 188 I.P.C. for having lodged a false report with the police. The Judicial Magistrate, Didwana, by his order dated 15th February, 1977 held that the A.P.P. Was not present and the clerk of the A.P.P. had expressed his ignorance about the absence of the A.P.P. and further that on the previous dates the A.P.P. had sought opportunity to examine witnesses but did not produce any witness and no witness was present on that clay also. The Judicial Magistrate further held that since the complainant as well as the A.P.P. were both absent the complaint was being dismissed on account of the absence of the complainant and the accused was acquitted. Being aggrieved by the aforesaid order the State has filed this appeal.

(2.) I have heard Shri M.C. Bhati the learned Public Prosecutor for the State and Shri P.C. Mathur, the learned counsel for the accused respondent. I have also perused the record of the court of Judicial Magistrate. A perusal of the record of the court of the Judicial Magistrate shows that Shri Fateh Singh, S.H.O., police station, Ladnu, had filed a complaint in respect of offence under Section 188 I.P.C. in the court of Munsif and Judicial Magistrate, Didwana. The said complaint bears the signatures of the complainant Fateh Singh and bears the date 1st December, 1974. It was submitted in the court by the A.P.P. Grade II on 4th December, 1976. It further appears that an application was submitted on behalf of the complainant wherein it was stated that since the complainant has to remain out in connection with official work he would not be able to present in the court on each date of hearing and, therefore, his personal presence may be exempted. The complaint as well as the application for exemption from personal appearance filed by the complainant were put up for orders before the Judicial Magistrate on 25th January, 1975 and on that date the Judicial Magistrate passed an order directing that the complaint be registered and the accused be summoned. By the order aforesaid the Judicial Magistrate also exempted the personal appearance of the complainant. The order sheet further shows that the accused respondent appeared on 9th December, 1976 and thereafter on 26th May, 1976 the charge was read over to the accused respondent who pleaded not guilty. On 26th May, 76 the Judicial Magistrate also passed an order that the witnesses of the prosecution be summoned and that the summons be given dasti to the A.P.P. for service. There is nothing on record to show that the service of the summons was effected on the witnesses by the A.P.P. The order sheet dated 12th June, 1976 however shows that on that date the witnesses were present and the A.P.P. sought an opportunity for producing the witnesses on the next date and the case was adjourned to 12th August, 1976. On 13th August, 1976 also no witnesses were present and the A.P.P. was directed to produce witnesses Nos. 1 to 4 on the next date, i.e. 4th October, 1976. On 4th October, 1976 also the witnesses were not present and a further direction was given for production of the witnesses on 16tui November, 1976, On 16th November 1976, the A.P.P. sought further opportunity to produce the witnesses and the case was adjourned to 23rd December, 1976. On 23rd December, 1976 also the A.P.P. sought further opportunity to produce the witnesses and the case was adjourned to 15th February, 1977. On 15th February, 1977 also the witnesses were not present and the A.P.P. was also not present and thereupon the Judicial Magistrate passed the order dated 15th February, 1977 dismissing the complaint and acquitting the respondent.

(3.) The learned Public Prosecutor has submitted that in view of the order dated 25th January 1975 passed by the Judicial Magistrate exempting the personal attendance of the complainant, the Judicial Magistrate was not justified in dismissing the complaint and in acquitting the respondent on the ground that the complainant was not present. In my opinion, the aforesaid contention of the learned Public Prosecutor appears to be justified. Since the Judicial Magistrate had passed an order on 25th January 1975 exempting the personal attendance of the complainant Fateh Singh, S.H.O., police station, Ladnu, the non-appearance of the complainant on 15th February, 1977 was perfectly justified and the Judicial Magistrate would not have dismissed the complaint and acquitted the accused on the ground that the complainant was absent. In case the Judicial Magistrate felt that the presence of the complainant was necessary he ought to have passed an order revoking his earlier order dispensing with the personal attendance of the complainant and if the complainant had failed to appear, thereafter he might have dismissed the complaint on the ground of the absence of the complainant. The order passed by the Judicial Magistrate dated 15th February, 1977 cannot, therefore, be held to be in consonance with the provisions of Section 256 Cr. P.C.