EMPEROR Vs. LAXMI PRASAD TULSIRAM

JUDGEMENT

(1.) THIS is a reference under Section 438, Criminal P.C, by the Additional Sessions Judge, Seoni, against an order of acquittal under Section 247, Criminal P.C, passed by Mr. Kolte, Magistrate, First Class, Seoni, in Criminal Case No. 215 of 1939 under Section 6, Child Marriage Restraint Act. The complainant filed a complaint under S- 6, Child Marriage Restraint Act, against three persons. The said complaint was registered after preliminary enquiry on 17th August 1939 and summonses were issued to the accused asking them to appear before the Court on 2nd September 1939. On this date the complainant was absent but had sent a medical certificate with his pleader and the Court accepting it did not dismiss the complaint in the absence of the complainant. Only one accused appeared before the Court on 2nd September 1939 and he promised that his wife, accused 2, who had gone to some other village, will be produced by him on the next date of hearing in the case. The summons of accused 3 was not returned and he was absent. So far as that accused was concerned, the Court thought it proper to await the return of the summons. Accused 1 who was present was ordered to furnish bail for Rs. 100 with one surety for the like amount and the case was adjourned to 12th September 1939. The complainant was again absent on 12th September 1939. His pleader was also absent and no medical certificate was produced this time. Accused 1 was present and stated that accused 2, his wife, was on her way to Court. Accused 3 does not appear to be present. The Court dismissed the complaint under Section 247, Criminal P.C, and acquitted the accused.

(2.) AGAINST this acquittal, the complainant filed an application for revision before the Additional Sessions Judge, Seoni, in which he stated that he was to come to Court on the 12th but was delayed owing to his ill-health and that when he reached the Court he learnt that the case was already called in the early hour at about 11-18 A. M. and dismissed in default. The learned Additional Sessions Judge was of the opinion that the order of acquittal is illegal and improper and he has submitted the case to this Court recommending that the order be set aside and retrial ordered. The learned Additional Sessions Judge while making reference argued that the order, dated 12th September 1939 acquitting the accused under Section 247, Criminal P.C., is illegal and the same argument is repeated before me. The contention is that the date 12th September 1939 was not a date appointed for the appearance of the accused nor was it a date subsequent thereto to which the hearing of the case was adjourned, to attract the provisions of Section 247, Criminal P.C. It is argued that 12th September 1939 was fixed only to await the return of a summons issued against accused 3 and it was no date for appearance of the accused or for adjourned hearing of the case. Section 247, Criminal P.C., runs as under: If the summons has been issued on 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, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks proper to adjourn the hearing of the case to some other day: Provided that, where the complainant is a public servant and his personal attendance is not required, the Magistrate may dispense with his attendance, and proceed with the case.

(3.) THE only exception to this rule is one given in the proviso to Section 247 itself. It may also be conceded that when the case is fixed for mere delivery of judgment as was the case in Emperor v. Jangu Singh (1923) 10 AIR Nag 158 or is adjourned to a date on which it is known that only a future date of hearing is to be ascertained as was the case in In re Jamnabai Meghji AIR 1934 Bom 130 the presence of the accused should not be insisted upon by the Court and if an order is passed under Section 247, Criminal P.C., under such circumstances, it may be set aside but the same cannot be said about the facts of the present case. In the present case, the case was adjourned to 12th September 1939 on which two of the accused were bound to appear and the summons of accused 3 was awaited. If accused 2 did not appear in spite of the undertaking given by accused 1 or if the summons of accused 3 was not served, the Court had to take definite steps for securing the appearance of the accused and would have passed orders in the ordinary course directing the complainant to take some step or other in that behalf. If all the accused had by chance appeared the Court would have directed the complainant to take some further step for the progress of the case. 12th September was not thus a mere nominal hearing.