STATE OF RAJASTHAN Vs. MAHADEV

JUDGEMENT

(1.) THIS appeal is directed against the order of the learned Munsif Magistrate No. 2, Jodhpur, dated 14 -9 -71 by which she acquitted the respondents of the offence under Section 34 of the Police Act, 1861, and under Section 160, Indian Penal Code.

(2.) I have heard arguments of the learned public prosecutor and the learned Counsel for the respondents. I have also perused the record of the case.

(3.) THE learned public prosecutor submitted that the respondents were riotous and were fighting in a public thoroughfare and the learned Magistrate should cot have dismissed the complaint in the manner she did. Under Section 247 of the Code of Criminal Procedure, no doubt the magistrate has a discretion to acquit the accused for non -appearance of the complainant but this diacritic requires judicial exercise thereof and the Magistrate should disperse with the attendance and proceed with the case where he considers and is satisfied that the personal attendance of the complainant is not necessary. I agree with the contention raised by the learned Counsel for the State that the order of acquittal made by the learned Magistrate under Section 247; Cr.P.C. has beer made without giving proper consideration whether the presence of the complainant was necessary at alien ire date of hearing but it is such a petty matter which occurred in May 1971 about five years ago that I do net feel inclined to set aside the order of the learned Magistrate and remand the case for retrial.