NAGARAMBILLI TONKYA Vs. MATTA JAGANNATHA

JUDGEMENT

(1.) This is a petition to revise the order of acquittal passed by. the Second Class Magistrate of Sompeta under a. 247 of the Cr.P.C., It is contended by Mr. Bhashyam Iyengar for the petitioner that the complainant and his witnesses appeared at 11-30 A.M. on the date fixed for the trial of the case and the Magistrate acted illegally in acquitting the accused on the ground that the complainant was absent and that the appearance of the accused on the date is a sufficient compliance with Sec. 247. The question is whether the absence of the complainant at the time when the case was taken up for hearing was sufficient to justify the Magistrate in dealing with the case under Section 247. That section is in these terms: 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.

(2.) The section makes it obligatory upon the Magistrate to acquit the accused if the complainant does not appear unless he thinks proper to adjourn the hearing of the case to some other day. The contention is that it is sufficient if the complainant appears at any time during the day, and that "the day" means the ordinary working hours of the Court, i.e., from 11 A.M. to 5 P.M. If the contention is to hold good, it would mean that the Magistrate has to wait till 5 P.M. before dealing with a case under Section 247: There is nothing in the section which would justify the construction that the words "upon any day appointed for the appearance of the accused" etc., mean any time before the close of the working day. In Order IX, Rule 8 of the C.P.C. the wording is. "Where the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed" etc. From this it is clear that the plaintiff should be present when the case is called on for hearing. The object of Section 247 is to prevent the complainant from being dilatory in the prosecution of the case, and if he does not care to be present when the case is called on, the accused is entitled to an acquittal unless the Magistrate chooses for reasons he thinks proper to adjourn the case. It may, no doubt, appear to be a hardship that a complainant who was present from 11-A.M. to 4-30 P.M. should have his case dismissed if he happens to be away for a few minutes when the case is taken up; but the question is not whether there is hardship or not but what is the meaning of the section. The complainant is bound to be present on the date to which the case is posted, and if he wants to be absent during any portion of the day he should take the Court's permission for doing so. But, if he does not do so, he does so at his risk. It is suggested that such a construction would entitle the Magistrate to dismiss a complainant under Section 247 even after the prosecution case is closed and before he delivers judgment. No doubt, it would be so; but that is not a ground for giving a construction to a section different from what the clear words would justify.

(3.) The presence of the complainant's Vakil alone is not sufficient compliance with the requirements of Section 247. In civil cases the presence of a party's Vakil is considered as the appearance of a party. But in criminal cases except where the Court dispenses with the personal attendance of the accused and allows him to appear by a Pleader or agent his presence is essential.