1984 Supreme(MP) 2

P. D. Mulye, J.
Satyanarayan Gupta v. Rajendra Kumar
Cr. A. No. 596 of 1978 (I); Decided on 4-1-1984.

Headnote:(1) Criminal P. C., 1913 -- S. 246 (5) -- witness recalled for cross-examination absent without assigning any reason -- accused acquitted -- order of the acquittal not unjustified.

        (2) Criminal P. C., 1973 -- S. 378 -- witness called for cross-examination absent without cause -- order of acquittal not unjustified.

        (3) Evidence Act. 1872 -- S. 137 -- witness recalled for cross-examination by the accused absent -- order of acquittal is proper.

        The statement of the Food Inspector was recorded on 23-12-1976 and the charge was framed on 31-12-1976 which was denied by the respondents. They, therefore, prayed for cross-examination of the said Food Inspector Satyanarayan Gupta, for which the next date fixed was 11-1-77. However on that date none appeared before the trial Court on behalf of the complainant nor the said Food Inspector was present nor any application was filed for the adjournment nor any reason was assigned for the absence of the said Food Inspector. The learned trial Court therefore, by the impugned judgment, for want of cross-examination which was ordered as provided by section 246 (5) Cr. P. C. 1973 did not think it necessary to fix the case for other evidence and, therefore, acquitted the respondent by taking resort to the provisions of Section 137 of the Evidence Act. Hence, this appeal.

        Held : The learned Counsel for the appellant relying on the decision reported in 1977 (II) F.A.C. 316, AIR 1960 Orissa 185 (Bharata Rona Vs. Rama Nahak) and AIR 1954 Assam 69 (Bhagirathmal Agarwalla V. Sohanlal Seraogi) contended that this being a warrant case the learned Magistrate was in error in acquitting the respondents on account of the absence of the Food Inspector as the learned Magistrate was duty bound to secure the attendance of the complainant and his witnesses £or further cross-examination.

        However, I am of opinion that the authorities cited by the learned counsel for the appellant have considered the scope of S. 256 of the old Cr. Procedure Code, the corresponding section under the Code of Criminal Procedure, 1973 being Section 246, according to which at the request of the respondents the Food Inspector was recalled for cross-examination but he did not put in his appearance on 11-1-1977. Therefore, it cannot be said that no opportunity was given to the appellant as urged on his behalf by recalling the said witness as apart from him no other witnesses were examined before charge. Thus, considering the facts and circumstances of the case the acquittal of the respondent cannot be said to be unjustified.

        1977 (II) F.A.C. 316, AIR 1960 Orissa 185 and AIR 1954 Assam 69 distinguished. Appeal dismissed.