1. The Chief Inspector of Factories, Orissa forwarded a complaint to the Sub Divisional Magistrate, Sambalpur Sadar, against the accused for prosecution under S. 92 of the Factories Act, the accused being alleged to have used a building as a factory without the prior approval of plans of the said building by the Chief Inspector of Factories, for not submitting an application in the prescribed form to the Chief Inspector for registration and grant of licence to the factory, and for not depositing the licence fees for registration with the Chief Inspector of Factories. This complaint, which was forwarded on 8-2-59, was received by the Sub-divisional Magistrate on 9-2-59, and the Sub-divisional Magistrate took cognizance of it on 13-2-59. In the forwarding letter accompanying the complaint, the Chief Inspector had observed, Shri B. Panda, Inspector of Factories, Orissa, Cuttack may appear as witness if so required and nothing was stated as to if the Chief Inspector himself would or would not be a witness. After taking cognizance of the complaint, the Sub-divisional Magistrate issued summons to the accused, but no steps were taken then or at any stage later on to summon the complainant or any other witness for the prosecution.
2. Alter some adjournments, the Government Pleader entered appearance, but no move was apparently made by the Government Pleader for summoning anybody on behalf of the prosecution. On a particular day fixed for hearing of the case, the Magistrate (to whom the case had been meanwhile transferred) dismissed the complaint after making the following observation.
“……. The P.P who is to conduct the case is present, Complainant nor any or the representative present. Absence of the complainant or his representative, if any, seems to be unexplained and unaccounted for, nor steps have been taken by the complainant consistent with the provisions of law to be represented by the P.P and to dispense with his personal attendance in the court; P.P is simply to conduct prosecution and nowhere on the record there is any document forthcoming that he is authorised in accordance with the provisions of law to represent the complainant. As such I acquit the accused under S. 247 Cr. P.C on account of the unaccounted for and unexplained absence of the complainant”.
3. The complaint being made by a public servant in his official capacity, the prosecution amounted to a public prosecution, and the P.P who appeared in the case could be engaged for conducting such a prosecution, under the rules in the Bihar and Orissa Practice and Procedure Manual, not by the public servant concerned but by the District Magistrate with the sanction of the Legal Remembrancer. Even if the P.P would have been engaged by the public servant himself, the presence of the P.P could not, in law, amount to the appearance of the complainant in the case. Section 247 Cr. P.C provides.
“If…….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 Magistrate is of opinion that the personal attendance of the complainant is not necessary the Magistrate may dispense with his attendance and proceed with the case”.
4. The corresponding proviso clause to S. 247 Cr. P.C prior to 1955 amendment was as follows:
“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”.
5. Obviously, by the amendment, the proviso clause wanted to cover a wider range including cases where public servants were complainants, and the test for dispensing with the personal appearance of the complainant, both before and after the amendment, is whether his personal attendance is necessary in the case, though before the amendment the test could only apply if the complainant was a public servant and nobody else. The amendment made in 1955 does not take away the consideration that could be previously extended to a public servant — complainant, as was sought to be urged by Mr. Das. The fact in the case is that the complainant was absent and even though the P.P appeared, his appearance did not and could not amount to the appearance of the complainant, and no steps had been taken before the Magistrate for dispensing with the personal attendance of the complainant. The three allegations against the accused had direct bearing with the office of the Chief Inspector, the complainant himself, and the complaint petition did not mention that the Chief Inspector's appearance would not be necessary in the case. Even though the P.P appeared at an intermediate stage of the trial, he took no steps to move the Court to dispense with the personal appearance of the complainant, nor did the P.P place before the court, on the day the complaint was dismissed, that the personal appearance of the complainant was not necessary. In such a position, the only course open to the Magistrate under S. 247 Cr. P.C was to acquit the accused.
6. It has been urged by the learned Government Advocate that the complainant had no knowledge about the different dates of hearing fixed by the Magistrate and no information was sent to the complainant about the date of trial by the Magistrate after taking cognizance, and as such the complainant was not in a position to know as to when he has to appear, and so the complainant's non-appearance could not be penalised. On the contrary, it was urged by Mr. Das that there is no provision in the Code requiring the Magistrate to inform the complainant about the date of commencement of the trial, and that the point urged by the learned Government Advocate was not taken, in the appeal memo. The latter part of the objection of Mr. Das is not of much avail in a criminal appeal. As to the first part of the objection that the Magistrate had no duty to inform the date fixed for trial to the complainant, Mr. Das sought to say that there should be no difference between a private complaint and a complaint by a public servant in his official capacity.
7. Unlike in case of a private complaint, the presence of a public servant before the Magistrate to lodge a complaint is not insisted upon by law. If a complaint by a public servant forwarded to the Magistrate, either by post or any other method of communication, can be legally taken cognizance of, then necessarily it is implied that the Magistrate should inform the public servant of the date fixed for commencement of the trial, and this the Magistrate should do, not by any private correspondence, but by giving a direction in the order-sheet.
8. A public servant, who despatched a complaint to Magistrate, cannot Rationally be expected to daily hang about the court premises to ascertain as to when the Magistrate takes cognizance on a complaint previously forwarded by him and what steps the Magistrate takes after taking such cognizance So, I hold that it was the duty of the Magistrate to inform the complainant in the present case about the date when hearing was to commence. Had the matter ended here, I would have been inclined to restore the trial of the case. But there are noticeable laches in the case from the prosecution side. Under S. 204(1-A) Cri. P.C (as amended in 1955), no summons or warrant shall be issued against the accused under sub-section (1) until a, list of the prosecution witnesses has been filed, and in the present case no such list was filed.
9. The aforesaid amended clause (1-A) of S. 204 Cr. P.C makes no distinction between a private complaint and a complaint by a public servant. Secondly, whatever might have been the laches of the Magistrate in not informing the complainant about the commencement of the trial at the earlier stage, when the Government Pleader appeared at an intermediate stage of the trial, it was his duty to place a list of prosecution witnesses to be summoned before the Court which he did not do, and even on the date of dismissal he did not attempt to place before the Court that the complainant's appearance might be dispensed with.
10. Though, no doubt, the P.P was engaged by the District Magistrate, it was his duty to keep the public servant concerned informed to take any necessary step in the matter of the trial.
11. In such a position, the prosecution could not reasonably urge that the Magistrate's failure to inform the complainant of the commencement of the trial resulted in the non-appearance of the complainant.
12. In the result, I find no merit in the present appeal which is accordingly dismissed.
FE/J.D
13. Appeal dismissed.
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