The Magistrate has the discretion to dispense with the attendance of the complainant and proceed with the trial, especially in cases involving busy public servants, as per the provisions of Section 247 of the Code of Criminal Procedure.

GURDEV SINGH, J.

1. This appeal by the State of Haryana is directed against the order of Shri Ram Saran Dass Bhatia, Judicial Magistrate First Class, Ambala City, dated 30th May, 1969, whereby he dismissed the complaint against the respondent who was prosecuted under Section 12 (1) of the Punjab New Capital (Periphery) Control Act, 1952, solely on the ground that the complainant was absent. The date on which the complaint was dismissed was fixed for the appearance of the accused. Though the accused appeared, the complainant, who in this case was Director, Town and Country Planning and Deputy Commissioner (Periphery), Chandigarh, happened to be absent. The Public Prosecutor Mr. Balbir Singh, however, represented him. The learned Magistrate dismissed the complainant by his order, which reads thus:

"Complainant not present. No exemption applied for, Complaint is dismissed in default of the appearance of the complainant. File."

2. The learned Assistant Advocate-General Mr. H. N. Mehtani appearing for the State urges that the learned Magistrate should have applied his mind to see if he should grant exemption of appearance to the complainant even if there was no written, prayer before him and when the complainant was represented by the Public Prosecutor, and that the dismissal of the complaint, which had been preferred by a busy public servant, on the day which was fixed for the appearance of the accused was neither warranted by the provisions of Section 247, Criminal Procedure Code nor justified by the circumstances of the case. In this connection, he has placed reliance upon the Division Bench decision of this Court in State V/s. Gurdial Singh, AIR 1961 Punj 77 : ((1961) 1 Cri LJ 305) to which one of us was a party. On adverting to the provisions of Section 247, Criminal Procedure Code, under which the Magistrate in the instant case has acted, and after considering the case law on the point the Division Bench ruled that the Magistrates dealing with the summons cases are not to dismiss a complaint merely because the complainant happens to be absent, but they should apply their mind to the facts of each case and in fit cases dispense with the attendance of a complainant and proceed with the trial so that justice be done to the parties. Dealing with Section 247 of the Code of Criminal Procedure, it was further observed as follows:-

"The object of this provision of law is to prevent the complainant being dilatory in the prosecution of his case, but it nowhere lays down that in all cases, where the complainant is found to be absent on the date of hearing, the case has to be dismissed. On the other hand, it vests discretion in the Magistrate to adjourn the hearing of the case to some other date, or to proceed with the case even if the complainant is not present at the trial of a summons case."

3. In that case the complaint which was dismissed had been instituted by the Registrar of Companies and adverting to this fact it was observed:

"In cases like the present when the complaint has been filed by a responsible Head of the Department like the Registrar of Companies who cannot be expected to attend each and every case filed in his name, the power to dispense with the attendance of the complainant should be freely exercised by the Courts as his absence at the date of hearing is not likely to prejudice the fair trial. If at any stage of the trial the Courts deem the presence of the complainant necessary there is nothing to debar them from ordering the complainant to be present at a particular hearing, but to insist that a busy public servant who has multifarious duties to discharge should attend each and every complaint filed in his name would result in delaying the proceedings and would certainly be not in the interest of Justice."

4. These observations are fully applicable to the facts of the case which is now before us.

5. It may be reiterated here, as was observed by Mosley J. in U Tin Maung V/s. The King, AIR 1941 Rang 202 : (