Kishan Das vs Manohar Lal and Others

P.D. Sharma, J.—Kishan Dass filed a complaint u/s 330 of the Indian Penal Code in the Court of the Additional District Magistrate, Hohiarpur, on 29th July, 1960, against Manohar Lal, Harbans Singh, Karam Singh, Sunder Lal, Police Officials, and one Bakhshi Amir Chand, resident of Hoshiarpur, on the allegations that the Hoshiarpur Police sometime back challaned him u/s 506 of the Indian Penal Code but he was acquitted by the trial Court which annoyed the police, and that on 18th July, 1960 at 7-30 p. m., Manohar Lal Head-constable, Harbans Singh, Karam Singh and Sunder Lal foot-constables accused Nos..1 to 4 along with other police constable and Bakhshi Amir Chand accused No. 5 came to his shop, when the first of them said that he would like to search his shop as he indulged in Satta gambling. He asked him to produce the search warrant. The Head-constable is said to have lost his temper on it and directed the foot-constables to handcuff and take him to the police station which was done. The complaint further mentions that the police party gave the complainant beating and kept him confined in the judicial lock-up at the police station and produced him before the Magistrate on the following morning when at his request the Civil Surgeon examined him. He was enlarged on bail on 28th July, 1960, by the learned Sessions Judge of Hoshiarpur.

The learned trial Magistrate after recording the statements of witnesses came to the conclusion that a prima facie case u/s 342/323 of the Indian Penal Code was established against the five accused and so he issued sommonses against them. The case on the application of the complainant was transferred to the Court of the Magistrate First Class, Jullundur, who dismissed it in default u/s 247 of the Code of Criminal Procedure on 24th November, 1961. The complainant after obtaining special leave under sub-section (3) of section 417 of the Code of Criminal Procedure has come up in appeal to this Court.

The learned counsel for the complainant appellant urged that the complaint was dismissed in default in the early hours of the day on 24th November, 1961, and in support thereof he referred to the order of the learned Magistrate of even date on the appellant''s application for restoration of the complaint where in he had mentioned, presented by Shri Durga Dass Advocate at 11-40 a. m......

This evidently shows that the learned Magistrate without, affording an opportunity to the complainant to appear in the later part of the day dismissed the complaint in default and thus failed to observe the directions given by this court in Rule 3(ii) of the High Court Rules and Orders, Volume III, Chapter 1-F, which provides;

(ii) (a) Magistrate should not dismiss complaints or cases instituted on complaint; without giving complainants full opportunity for appearance. Ordinarily, if a complainant is absent when his case is first called on, his case should be called on again later, and the time of dismissal should always be noted on the record.

There is thus no doubt that the learned Magistrate dismissed the complaint in haste and his order under appeal cannot be sustained in law.

In the result, the appeal is allowed and the order of the learned Magistrate dismissing the complaint in default and acquitting the accused is set aside. The case is remanded to him for further proceedings according to law.

The parties through their counsel have been informed to present themselves before the trial Court on 2nd December, 1963.

R.P. Khosla, J.

I agree.