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High Court Of Delhi
MOHAMMAD YAMIN - Appellant
Versus
ZAFAR MOHAMMAD - Respondent
CRIMINAL APPEAL 9D of 1966
Decided On : 10/18/1967
CRIMINAL PROCEDURE CODE - SECTION 247 - ACQUITTAL OF ACCUSED DUE TO ABSENCE OF COMPLAINANT - INTERPRETATION OF SECTION 247 - DISCRETION OF MAGISTRATE - HIGH COURT RULES AND ORDERS, VOL. III, CHAPTER I-F - JUDICIAL APPROACH REQUIRED - ARBITRARINESS AND UNJUDICIAL ORDERS TO BE AVOIDED - IMPORTANCE OF IMPROVING QUALITY OF CRIMINAL JUSTICE IN DELHI.
Fact of the Case:
The complainant, Modh. Yamin, filed a private complaint against two accused persons, Zafar Mohammad and Mohd. Akal, under sections 323, 324, 325, 323, and 452 of the Indian Penal Code. The complaint alleged that the accused had beaten the complainant and caused him injuries. The Magistrate, after an enquiry under section 202 of the Criminal Procedure Code, concluded that the injuries suffered by the complainant were simple and caused by a blunt weapon, and thus only a case under section 323, IPC was made out. The case was then transferred to another Magistrate for trial. On the date of the trial, the complainant was absent, and the Magistrate acquitted the accused under section 247 of the CrPC.
Finding of the Court:
The High Court held that the Magistrate erred in acquitting the accused without considering the merits of the case and without giving the complainant a reasonable opportunity to appear. The Court interpreted section 247 of the CrPC as not being mandatory and held that the Magistrate has the discretion to adjourn the case or proceed with the trial even in the absence of the complainant. The Court also referred to the High Court Rules and Orders, Vol. III, Chapter I-F, which provide instructions to Magistrates on the dismissal of cases in default and emphasized the importance of judicial discretion and the need to avoid arbitrariness and unjudicial orders.
Issues: 1. Whether the Magistrate was bound to acquit the accused under section 247 of the CrPC in the absence of the complainant? 2. Whether the Magistrate exercised proper judicial discretion in acquitting the accused without considering the merits of the case?
Ratio Decidendi: 1. Section 247 of the CrPC is not mandatory and the Magistrate has the discretion to adjourn the case or proceed with the trial even in the absence of the complainant. 2. The Magistrate failed to exercise proper judicial discretion in acquitting the accused without considering the merits of the case and without giving the complainant a reasonable opportunity to appear.
Final Decision: The High Court allowed the appeal, set aside the impugned order of acquittal, and remitted the case back to the Magistrate for further proceedings in accordance with law.
( 1 ) THIS is an acquittal appeal in a case started on a private complaint by Modh. Yamin complainant appellant. The impugned order was passed by Shri A. C. Kher, Magistrate 1st Class, Delhi, on 10th February 1966 and reads as under : -
"the complainant Mohd. Yamin is absent today. It is 11. 15 A. M. and he has been called thrive but ha is absent. The accase I are, therefore, acquitted in accordance with provisions of section 247 Cr. P. C. as the case standing trial before this Court is of section 323, 1. P. C. , which is a summons case. The file may be consigned to record room. "it is obvious that there is no mention of the fact whether or not the accused persons were present on the date of hearing when they were acquitted on account of the absence of the complainant.
( 2 ) THE complaint under sections 323, 324, 325, 323 and 452, Indian Penal Code, was filed on 30th January. 1965, against two accused persons Zafar Mohammad and Mohd. Akal, in which it was alleged that accused No. 1 had beaten the complainant mercilessly after using fifthy language because of a customer having come to the complainant s shop after visiting the shop of the said accused the matter was reported to the Police Station, Jama Masjid, but the police declined to take any action. A copy of the report was attached with the complaint. Since that incident, the two accused persons, who are running a common shop of motor parts at a few paces from that of the comkplainant in Kabari Bazar, Jama Masjid, have been feeling inimical towards the complainant. On 16th January, 1935 at It AM, when the complainant was working in his shop, the two accused persons arrived there and all of a sudden gave a blow with an iron rod on his head, as a result of which the complainant became unconscious. They also beat the complainant with the same iron rod on his leg and at his back. Some persons, including the neighbouring shop-keepers, arrived at the spot and saved the complainant from the clutches of the accased. This matter was reported to the Police Station, Jama Masjid by one Mohammad Babu, an eyewitness to the occurrence. The complainant was taken to the Police Hospital and thereafter was sent to Irwin Hospital, where he remained from 16th January, 1965 to 27th January, 1965. This complaint was accompanied by a list of five witnesses. It appears that the matter was referred for enquiry under section 202 Criminal Procedure Code, and Shri V. K Bhalla, Sub Divisional Magistrate on 18th September, 1965, alter going through the evidence of four witnesses produced by the 143 complainant, came to the conclusion that the injuries suffered by the complainant were simple, caused, by some blunt weapon, with the result that only a case under section 323, Indian Penal Code, was made out. With this opinion, the file was submitted to the learned Additional District Magistrate (Central) and the complainant was also directed to appear before the said A. D. M. on 20th September, 1965. It is worth pointing out that in the course of enquiry under section 202, Criminal Procedure Code, the first two witnessess were examined on 20th March, 1965, the third witness was examined on 16th April, 1965 and the fourth on 9th August, 1985. From the oder-sheet, I find that on 19th August, 1965, the Magistrate had ordered the complainant to appear before the Additional District Magistrate on 13th September, 1965, but the file was directed to be placed before the Court for a suitable order on 6th September, 1965. This order is obviously difficult to understand, On 13th September, 1965, the complaint was stated to be present, but the presiding officer was stated to be busy with emergency work, with the result that the file was directed to be placed before the Court for suitable orders on 18th September, 1985. It was added that the file should be sent to the Additional District Magistrate on 20th September, 1965. On 18th September, 1965 again, the complainant was present
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