Bhim Sain v. Pritam Singh And Ors

(1) In a case under Section 448/336 R. P. C. pending in the court of the Sub Judge Judicial Ma­gistrate, Jammu, the complainant remained absent on 17-1-1975 when the court dismissed the case for his non-appearance under Section 247 Cr. P. C. and discharged the accused. Against, this order revision was filed before the learned Addl. Sessions Judge, Jammu who has upheld the order of the trial magis­trate. Aggrieved by this order, the complainant has come up in further revision before this court.

(2) Mr. Sehgal appearing for the petitioner has contended that the provisions of Section 247 Cr. P. C. do not apply to the present case inasmuch as that Section provides that if the summons have 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 not withstanding herein before contained, acquit the accused, unless for some reasons he thinks proper to adjourn the hearing of the case to some other day. It is urged that no summons was issued on complaint but a warrant was issued, However, the learned Magistrate did not acquit the accused but passed an order of discharge. The order, it is sub­mitted, was, therefore, erroneous in law.

(3) I have given my thoughtful consideration to the legal proposition debated before me.

(4) In so far as the second contention raised by Mr. Sehgal that the magistrate should have passed an order of acquittal and not of discharge and, that, therefore, the order is bad in law and cannot be sustained, is concerned, I am not in agreement with him inasmuch as the order of discharge can be construed to be an order of acquittal. If the magis­trate has wrongly recorded the word "discharge" that can be interpreted as an order of acquittal.

(5) But there, however is a great force in the argument that section 247 Cr P. C. does not apply to the present case because no summons had been issued on complaint.

(6) On a perusal of this Section it is quite manifest that the power conceded by the Section to a magistrate to acquit the accused for non-appearance of the complaint is only if the summons have been issued on a complaint. The Legislature, it appears, have used these words deliberately in this Section. These words do convey some meaning. If these words are not taken notice of and are not given ef­fect then this would render the language of Section 247 Cr. P. C quite meaningless. To me, it appears, that it is only if summons have been issued on com­plaint, that the magistrate can dismiss a complaint and acquit the accused for the non-appearance of the complaint, for otherwise if warrants have been issued, Section 247 Cr. P. C. will not apply.

(7) I agree with' the learned counsel for the accused that the procedure provided for the trial of the instant case is one as provided for the trial of summons cases. His contention, however, is that if the magistrate had wrongly issued warrant in the first instance, it was a curable defect within the meaning of Section 537 Cr. P. C. and this would not make the Section inapplicable. The question, how­ever, is not whether the issuance of warrant is a curable defect or otherwise. As a matter of fact, the magistrate was competent to issue warrant aga­inst the accused as per Schedule annexed with the Code. This would not make Section 247 Cr. P. C. inapplicable when summons are not required by the Schedule to be issued in the first instant. 1 am, therefore, loath to agree with the courts below that Section 247 Cr. P. C. was applicable and the magis­trate was competent to dismiss the complaint.

(8) The result is that the revision petition is allowed, and the orders passed by the courts below are hereby set aside. The case is sent back to the trial magistrate for fresh disposal from the stage when the order impugned was made. The parties are directed to appear before the court below on May 19, 1978.