Nidhan Singh vs Kaur Singh and Others

Shamsher Bahadur, J.—This is a reference from the Additional Sessions Judge, recommending that the order passed by the Magistrate, Faridkot, acquitting the accused is bad in law and should be set aside.

On the complaint of the petitioner Nidhan Singh, Kaur Singh, Mukhtiar Singh and Sardara Singh were tried under sections 323/504/ 392/394 of the Indian Penal Code. The charge, however, was framed against these accused persons only u/s 323 of the Indian Penal Code, and the offence was being tried as Summons case. The procedure for the trial of Warrant cases, however, was adopted by the trial Magistrate. As I have said, the charge had been framed against the accused and further cross-examination of the prosecution witnesses had been recorded. The statements of the accused had also been recorded u/s 342 of the Code of Criminal Procedure, and what remained to be done on 22nd September, 1963, was to record the evidence of the defense. The complainant, however, did not appear on that day till 12.5 P. M., and the Magistrate dismissed the complaint in default of his appearance and the accused-persons were acquitted.

As stated in the order of reference, the complainant appeared before the Court on the same day, about an hour later, at 1 P. M., and submitted an application that he had been delayed on account of heavy floods in his village. The complainant, as stated in this application, was engaged in the task of salvage of his property from the house, which was under water. The Magistrate declined to take any further action on the application, which was supported by an affidavit, on the ground that after passing the order of acquittal he had become functus officio.

Assuming in favour of the respondents that the trial was that of Summons Case, the Magistrate did not act in accordance with law. It is said in proviso to section 247 of the Code of Criminal Procedure, which deals with the case of non-appearance of the complainant, that :

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.

In the Rules and Orders of the Punjab High Court, Volume III, it is stated in paragraph 2 of Chapter I-F that: Before a case is dismissed by reason of the absence of complainant, the Magistrate should carefully consider.

(a) whether such an order is legal; and

(b) whether it is justified by the circumstances.

In view of the proviso added to section 247 of the Code by Act 26 of 19o5, even in summons cases the magistrate can proceed with the case on complainant''s failure to attend when he considers that complainant''s personal attendance is not necessary. In the stage which the case had reached, it was the duty of the Magistrate to have proceeded with the case despite the absence of the complainant when the entire evidence of the prosecution had been recorded and the evidence on behalf of the accused alone remained to be taken. If the accused did not choose to give any defense evidence, the case could have been decided on its merits there was no justification at all for the Magistrate to have dismissed the complaint merely because the complainant was absent. In agreement with the learned Sessions Judge, therefore, I would quash the order of the Magistrate and direct him to proceed further with the complaint in accordance with law. The reference of the learned Sessions Judge is, therefore, accepted and the petition of revision of Nidhan Singh, allowed The parties have been directed to appear before the Magistrate on 16th December, 1963.