The legal principle established is that in cases of non-attendance by a witness, the court must provide a reasonable opportunity of hearing, and the time given for submitting a reply to show cause notice must be reasonable.

JUDGMENT :

B.P. Ray, J. - This appeal is directed against the order dated 3.5.2007 passed by learned Ad hoc Addl. Sessions Judge (FTC), Athgarh in Criminal Misc. Case No. 1 of 2007 wherein the Appellant has been found guilty of the offence u/s 350 of the Code of Criminal Procedure (in short, "the Code of Criminal Procedure") and on being convicted was sentenced to pay a fine of Rs. 100/- in default to undergo S.I. for 10 days.

2. The Appellant was the Investigating Officer in Gurudijhatia P.S. Case No. 166 of 2003 corresponding to G.R. Case No. 440 of 2003 in the file of S.D.J.M., Athgarh. This case was registered for the offence u/s 376, I.P.C. The case being one triable by the court of Sessions was committed to the court of Sessions and was registered as ST. No. 119 of 2006 in the file of the learned Ad hoc Addl. Sessions Judge (FTC), Athgarh. It appears from the impugned order that the Appellant who was the Investigating Officer in the case did not appear for recording his evidence despite the fact that wireless messages were sent on different dates including the messages dated 30.11.2006, 20.12.2006, 6.1.2007, 11.1.2007 and 25.1.2007. It further appears from the impugned order, the Appellant appeared before the court on 13.3.2007 and his evidence were recorded. Since the Appellant did not appear despite repeated wireless messages and letters for which, the learned court below initiated a proceeding u/s 350, Code of Criminal Procedure and took cognizance of the offence and that proceeding was registered as Criminal Misc. Case No. 1 of 2007. The learned court below by order dated 13.3.2007 issued notice to the Appellant requiring him to show cause during the course of the court hour i.e. within 4.00 P.M. as to why he should not be punished u/s 350, Code of Criminal Procedure It appears, the Appellant filed his show cause stating that he has not intentionally avoided to appear in the court for recording his evidence and he may be excused.

3. Considering the show cause filed by the Appellant, the learned Ad hoc Addl. Sessions Judge (FTC) convicted the Appellant u/s 350, Code of Criminal Procedure and imposed punishment as aforesaid. Hence, the Appellant has filed the present appeal.

4. Section 350 Code of Criminal Procedure no doubt provides a summary procedure for punishment for non-attendance by a witness in obedience to summons. But Sub-section (2) thereof states that in such case court shall follow procedure prescribed for summary trial. In the present case though the accused was served the notices requiring him to show cause, but the time given for the purpose was 4.00 P.M. of that day by which the Appellant was required to submit the reply to show cause notice. Though a summary procedure is provided for trial of such proceeding, yet the time afforded to the Appellant to submit his reply to the show cause notice, in my considered view is absolutely unreasonable. In other words, the Appellant was not provided a reasonable opportunity of hearing. In such view of the matter, I have no hesitation to set aside the impugned order.

5. In the result, the impugned order convicting the Appellant is hereby set aside and the appeal is allowed.

Final Result : Allowed