HAKIM SINGH Vs. BACHULAL

JUDGEMENT

(1.) THIS is a reference by the learned Additional Sessions Judge, Dholpur, recommending that the order of the learned Second Class Magistrate, Rajakhera, dated 23rd October, 1954, acquitting the accused Bachulal and others, be set aside.

(2.) PARTIES have not appeared. I have gone through the record of the case and also the order of the learned magistrate as well as the judgment of the learned Additional Sessions Judge. The case was, no doubt, under sec. 447 I. P. C. and was a summons case. Under sec. 247 of the Criminal Procedure Code if the summons has been issued on the complaint, and Upon the day appointed for the appearance of the accused or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall acquit the accused unless for some reasons he thinks proper to adjourn the hearing of the case to some other day. In the present case, however, the date on which the case was dismissed and the accused were acquitted was not for the first appearance of the accused or for any hearing in the case. The hearing had already been concluded on the 16th of October, 1954, when the arguments had been heard and the case was adjourned to 23rd of October, 1954, only for the pronouncing of the judgment. The order did not call upon the complainant to be present on that day ; nor was the presence of the complainant necessary. It is only the presence of the accused which was necessary on the date of the pronouncement of the judgment. The learned Magistrate was, therefore, not justified in dismissing the case and acquiring the accused. I am fortified in this view of mine by a ruling of the Lahore High Court in the case of Mohammad Hayat Mohammad Yar vs. Daulat Khan Saleh (1) and the ruling of the Nagpur Judicial Commissioner's Court in the case of Emperor vs. Jangusingh (2 ). In both these cases it was held that where the complainant was present throughout the whole case but was absent on the day of delivery of judgment, the acquittal of the accused under sec. 247 was improper.