S. Malik, J.@mdashThis is an appeal by- the State against the order dated March 15, 1971 of the Sub-Divisional Magistrate, Deoband Saharanpur dismissing the complaint filed by the sugarcane. Inspector-cum-Assistant Sugar Commissioner, Saharanpur, dt. November 6, 1970 u/s 247 of the Code of Criminal Procedure, 1898 because as mentioned in the impugned order, the complainant was absent on certain dates fixed in the case for the appearance of the accused and for hearing.
2. The relevant facts are that the complainant Shri S.S. Negi having been duly empowered by the District Magistrate formally filed the complaint according to law. The complaint was regarding non-compliance with provisions of the U.P. Sugarcane (Regulation of Supply and Purchase) Act, 1953 and the rules framed thereunder. It was based on facts said to have been discovered during an inspection by the then Sugarcane Inspector-cum-Assistant Sugar Commissioner Shri A.C. Verma on the 29th of November, 1969. The complainant appears to have succeeded Shri Verma who did the actual inspection and merely filed the complaint. Shri Negi, as appears from the facts narrated, had nothing to do with the facts mentioned in the complaint.
3. Section 247 of the Code of Criminal Procedure, 1898 lays down:
If the summons have been issued on complaint, and upon the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason. He thinks proper to adjourn the hearing of the case to some other day:
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.
Though from a reading of the first part of the section it appears that in a case covered by Section 247 Code of Criminal Procedure, the Court should automatically dismiss a complaint if the complainant is found to be absent on the day appointed for appearance of the accused or any day subsequent thereto to which the hearing may be adjourned. A. perusal of the entire section including the proviso clearly shows that under, certain circumstances the Court need not dismiss a complaint merely because the complainant was absent on the relevant day.
4. It is the duty of a Court of law to try to do justice in every case decided by it and not to dispose of a case on technicalities without entering into merits unless it appears that it had no option but to do so. The words ''unless for some reason he thinks proper to adjourn the hearing of the case to some other day'' in Section 247 of the Code of Criminal Procedure, 1898 and the proviso which follows, clearly show that a discretion has been given to the court concerned either to dismiss the complaint for non-appearance of the complainant or to adjourn the hearing of the case to some other date or to dispense with the personal attendance of the complainant if it appeared to the court that the personal attendance of the complainant was not necessary keeping In view the facts and the circumstances of the case. This discretion has to be judicially exercised. I am fortified in the view taken by me by the observations of this Court in Lala Dhanpat Rai v. State 1959 AWR 579 and in Bhagwat Sahai v. Smt. Bina Jha 1964 AWR 699. The latter is a case decided by a Division Bench of this Court. In the ruling relied upon by the lower court viz. The Municipal Board, Muzaffarnagar v. State 1969 AWR 878 neither of the earlier rulings mentioned were considered. Moreover, the judgment reported in 1969 AWR 878 is by a learned single Judge of this Court.
5. In the instant case, as appears from the order-sheet of the lower court, the complainant was absent on November 28, 1970 and December 16, 1970 but the court also did not sit on those dates as the Presiding Officer was away on tour. The order sheet shows that the complainant was present on January 5, 1971 though he appears to have been absent on January 16, 1971. It may also be mentioned that the complainant. Shri S.S. Negi had moved an application in the meanwhile praying that his personal attendance be dispensed with as he had filed the complaint merely as a public servant and it was not possible for him to attend the court on every date that might be fixed for hearing. As has been pointed out, Shri Negi merely formally filed the complaint as he was enjoined by law to do so. He had nothing to do with merits of the case.
6. In view of the reasons discussed and the observations made earlier, this is a fit case in which the lower court should have used its discretion judicially and should have dispensed with the personal attendance of the complainant as unnecessary.
7. The appeal, therefore, is allowed and the order passed by the lower court dismissing the complaint is set aside. The lower court is hereby directed to dispose of the complaint in accordance with law keeping in view the observations made. Let the record of the case be sent to the lower court at an early date.
