(1) This is an acquittal appeal in a case started on a private complaint by Mohd. Yamin, complaint-appellant. The impugned order was passed by Shri A. C. Kher, Magistrate, Frist Class, Delhi, on 10-12-1966 and reads as under:-
"The complaint Mohd. Yamin is absent today. It is 11.15 a.m. and he has been called thrice but he is absent. The accused are, therefore acquitted in accordance with provisions of Section 247, Criminal P. C., as the case standing trial before this Court is of Section 323, I.P.C., which is a summons case. This file may be consigned to record-room."
It is obvious that there is no mention of the fact whether or nto the accused persons were present on the date of hearing when they were acquitted on account of the absence of the complaint.
(2) The complaint under Section 323, 324, 325, 326 and 452, Indian Penal Code, was filed on 30-1-1965 against two accused persons Zafar Mohammad and Mohd. Akal, in which it was alleged that accused No. 1 had beaten the complaint mercilessly after using filthy language because of a customer having come to the complaint's shop after visiting the shop of the said accused. The matter was reported to the Police Station, JamaMasjid, but the Police declined to take any action. A copy of the report was attached with the complaint. Since the incident, the two accused persons, who are running a common shop of mtoor parts at a few places from that of the complaint in Kabari Bazar, Jama Masjid, have been feeling inimical towards the complainant. On 16-1-1965 at 11 a.m., 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 dame iron rod on his leg and at his back.. Some persons, including the neighboring shopkeepers, arrived at the spto and saved the complainant from the clutches of the accused. This matter was reported to the Police Station, Jama Masjid by one Mohammad Babu, an eye-witness to the occurrence. The complainant was taken to the Police Hospital and thereafter was sent to Irwin Hospital where he remained from 16-1-1965 to 27-1-1965. This complaint was accompanied by a list of five witnesses.
It appears that the matter was referred for enquiry under Section 202, Criminal P.C., and Shri V. K. Balla, Sub-Divisional Magistrate, on 18-9-1965, after going through the evidence of four witness produced by the 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, as 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 20-9-1965. It is worth pointing out that in the course of enquiry under Section 202, Criminal P. C., the first two witnesses were examined on 20-3-1965; the third witness was examined on 16-4-1965 and the fourth witness on 9-8-1965 , the Magistrate had ordered the complainant to appear before the Additional District Magistrate on 13-9-1865, but the file was directed to be placed before the Court for a suitable order on 6-9-1965. This order is obviously difficult to understand. On 13-9-1965 the complainant was stated to be present, but the presiding office 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 18-9-1965. It was added that the file should be sent to the Additional District Magistrate on 20-9-1965. On 18-9-1965 again, the complainant was present with his counsel, but the Presiding Officer was again busy with some emergency work, with the result that the case was adjourned to 20-9-1965 for suitable proceedings. It was thereafter that the papers were according to the order, forwarded to the Additional District Magistrate.
On 20-9-1965, the complainant was present with his counsel and it was ntoed that the file had been sent to the Additional District Magistrate, but its receipt had nto yet arrived. The file was thus ordered to be sent on 27-9-1965 and the complainant was also directed to appear in the Court of the Additional District Magistrate on that date. This order is again difficult to understand. On 27-9-1965, Shri R. Jain, who was presumably A.D.M., made an order that the accused were to be proceeded against only under Section 323, I.P.C. The case was adjourned to 15-10-1965. On that date, the complainant was present and so were the accused persons, who were released on bail by Shri R. Jain. The case was transferred to a Magistrate who was to hold the trial and the parties were directed to appear in the transferee Court on 19-10-1965. On that date, Shri A.C. Kher, Magistrate, First Class, adjourned the case to 25-11-1965 for evidence, the complainant being directed either to bring his witnesses with him or to summon them. He was required to deposit the process-fee within two days. On 24-11-1965, the complainant and btoh the accused were present, but a request was made by the complainant's counsel for adjournment because of his being busy in the High Court. The case was accordingly adjourned to 21-12-1965 for evidence. On that date, however though the complainant and the accused were present, the case could nto be taken up on account of , what is described by the learned Magistrate to be, rush of work. The case was thus adjourned to 22-1-1966. On that date, in the presence of the complainant and the accused persons, the statement of on witness was recorded. No toher witness being present the case was adjourned for the remaining evidence to 10-2-1966. The impugned order made on 10-2-1966 has already been reproduced.
(3) It is very strongly argued on behalf of the complainant that the learned Magistrate has erred in acquitting the accused and nto waiting, at least for some time, for the complainant to appear and prosecute the case. According to the counsel's argument before us, the complainant had just gone to the W.C. for a few minutes and the case was disposed of in his absence by acquitting the accused persons. This order is described to be contrary to the provisions of Section 247, Criminal P. C., and also violate of the instructions contained in the High Court Rules and Orders, Vol. Iii Chap. I-F. Our attention has also been drawn to Ram Narain v. Mool Chand, , a single Bench decision of the Lucknow Bench, and to Naresdh Prasad v. Mahavir Singh, , antoher Single Bench decision of the Allahabad
Court, in support of the appeal.
(3A) Shri Parkash Narain has, on behalf of the respondents, supported the correctness of the impugned order by contending on the literal language of Section 247, Criminal P, C., that the learned Magistrate had no option and that he was bound, as a matter of law, to acquit the accused when then complainant did nto appear on the case being called. He has cited Natesa Naicker v. Mari Grasmani, Air 1948 Mad 45 (Yahya Ali, J.) and Nagarambilli Tonkya v. Matta Jagannatha, Air 1926 Mad 1009 (Devadoss and Waller, JJ.), for the legal position canvassed by him.
(4) Let us first read Section 247 of the Code:--
"247. If the summons has been issued on Complaint, and upon the day appointed for the appearance of the accused, or any day subsequent thereto to which the bearing may be adjourned, the complainant does nto appear the Magistrate shall, ntowithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks proper to adjourn the hearing of the case to some toher day:
Provided that where the Magistrate is of opinion that the personal attendance of the complainant is nto necessary, the Magistrate may dispense with his attendance, and proceed with the case."
The proviso seems to us to negative the respondent contention that trial Magistrate is enjoined by peremptory mandate to acquit the accused if the complainant does nto happen to be present in court when the case is called. The word "shall", it may be remembered, does nto always necessarily conntoe a mandatory intent on the part of the law -maker. The purpose for which the provision is made and its nature, considered in its setting, the connected provision and toher similar matters, the serious general inconvenience or injustices to person resulting from reading the provision as directory or mandatory whether the cause of justices is promtoed or retarded as a consequence of construing the provision one way or the toher, have all to be taken into account by the judicial mind for the purpose of construing the word "shall" which, normally, may of course be considered to suggest an imperative tendency. No general rule running in fixed grooves is either possible or desirable to be prescribed, and indeed each case depends on the object sought to be achieved by the Legislature. Nto being rigid and fixed, the construction of the of the word "shall" in a given statute must be adapted to the fitness of the matter of the statutory provision. Realizing that punishment of crimes by the State Courts of law and justice serves as a check on the tendency by the private aggrieved parties themselves to take revenge by acts of violence and lawlessness for the actual or supposed wrong considered to have been done to them, and in view of the fact that, in the trails of criminal cases according to our Code, normally there is neither a general provision for a review nor for a settling aside dismissals in default, we are disinclined to impute to the Legislature a rigid mandatory intent in enacting Section 247 such as is suggested on behalf of the respondents. The fact that the order of acquittal would be final, is also nto unimportant in discovering the legislative intent.
(5) We may now turn to the rules made by the High Court on this subject. They are contained in Chap, I-F, Vol. Iii, High Court Rules and Orders, and may be read with advantage.
"Dismissal of cases in default.
1. Some Magistrates are inclined to dismiss cases in default hastily.
2. Before a case is dismissed by reason of the absence of complainant, the Magistrates should carefully consider-
(a) whether such an order is legal; and
(b) whether it is justified by the circumstances.
In view of the proviso added to section 247 of the Code by Act 26 of 1955, even in summons cases the Magistrate can proceed with the case on complainant's failure to attend when he considers that complainant's personal attendance is nto necessary.
Reasons should always be recorded where a case is dismissed in default.
3. In applications for revision of orders dismissing complaints or cases instituted on complaint, by reason of the absence of the complainant, it is frequently urged_
(a) that the complainant was nto called;
(b) that the case was dismissed very early in the day; or
(c) that the Magistrates being on tour, the complainant had no, or insufficient, ntoice of the place of setting.
(ii) The Magistrates records often furnish no definite information on any of these points. The following instructions are accordingly issued for guidance to subordinate Courts:-
(a) Magistrate should nto dismiss complaints or cases instituted on complaint without giving complainants full opportunity for appearance. Ordinarily, if a complainant is absent when his case is first called on, his case should be called on again later, and the time of dismissal should always be ntoed on the record.
(b) When the Magistrate is on tour, complaints or cases instituted on complaint should nto be dismissed unless the complainant has had due ntoice of the place of hearing.
(c) In carrying out these instructions Magistrates should bear in mind that if a summons case in which a summons has been issued, is dismissed on account of the absence of the complainant, the accused must be acquitted, unless the Magistrate decides to proceed with the case under proviso recently added to Section 247 of the Code. A warrant-case, in which proceedings have been instituted on complaint, can only; be dismissed in the absence of the complainant, if the offence is one that can lawfully be compounded, or is nto a congnizable offence. In the latter case the Magistrate may, in his discretion, discharge the accused at any time before a charge has been framed, under Section 259 of the Code of Criminal Procedure. If the offence is cognizable or is one that cannto lawfully be proceed with the case and decide it on its merits.
(d) Section 247 of the Code of criminal Procedure does nto apply when the entire evidence in a case has been concluded and the case has been adjourned only for judgment without the attendance of the complainant having been specially directed."
The rules remove all doubts on the point and quite clearly suggest that the Magistrate has to exercise his judicial discretion in making an order under Section 247 of the Code. Rule 3(ii) contains the broad instructions for the guidance of the Magistrate, prominently bringing out the grave responsibility which rests on the trying Magistrate when deciding whether to adjourn the case or to proceed with the trial, even in the absence of the complainant, or to acquit the accused. They completely rule out arbitrariness or fixed automatic rigidity of action on the part of the Magistrate. Speaking with respect, we think that these rules are supported by considerations of practical good sense and are designed to promtoe the cause of substantial justice. Indeed, the view taken by us was also favored in The State v. Gurdial Singh Gill.
(6) The decision in the case of Nagarambilli, Air 1926 Mad 1009, on which Sri Parkash Narain very strongly relied, was a revision and was given before the amendment in the proviso to Section 247 made in 1955. This amendment does seem evidently to widen the scope of the proviso, thereby making Section 247; more liberal in favor of complainants. Besides, even one of the learned Judges, Waller, J., expressly recorded his view that a Magistrate would be well advised to give a complainant, whose case is called early in the day, some latitude before Section 247; is applied. Devadoss, J., also declined to interfere, for one reason, because the case was before that Court on revision. This case also appears to have been dissented from by the Gujarat High Court in Mafatlal Manilan Shah v. c. C. Shah, . It would be
obvious that there are more reasons than one for us nto to follow this decision. The decision in the case of Natesa Naicker, Air 1948 Mad 45, was also in a revision and was given prior to the amendment of 1955. In that case, however, the learned Single Judge recognised the power of the Magistrate to adjourn the case for proper reasons. We need say ntohing more about this case as well.
(7) The object of Section 247, as it emerges on a consideration of the scheme of the Code of Criminal Procedure, is to ensure that private complaints are nto dilatory in prosecuting the criminal proceedings. As the history of the present case shows, the complaint-appellant has by no means been dilatory in conducting the proceedings: on the contrary, he has been earnestly and diligently prosecuting the case with all seriousness: the acquittal of the accused based merely on the absence of the complainant, when the case was called, without considering the merits, in fact of the dire consequences of such an order, clearly calls for a conscientious application of judicial mind by the learned Magistrate. The order of acquittal being appealable, it is only fit and proper that it must disclose on its face compliance with the instructions contained in Rule 3(ii) reproduced above and any infirmity in this respect would render the order open to examination by this Court. In the case in hand, the impugned order on its face reflects its arbitrary and unjudicial character. It is nto possible to know from the record as to when the case was first called and what was the interval, where after it was called the second and third times. Of course, the time of making the order of acquittal is contained in the order, but that by itself is quite clearly nto a sufficient compliance with Rule 3(ii). The order betrays absence of judicial approach by the learned Magistrate and his unawareness of the relevant legal provisions and of the binding decisions of the High Court. Administrative convenience seems to us to have weighed with him more than the cause of justice.
The present case has only added one more instance to the list of cases which have come to the ntoice of this Court disclosing the poor and unsatisfactory quality of criminal justice administered in the Courts of Magistrates in Delhi which, as the Capital of Republic, is expected to provide to its citizens ideal administration of justice befitting a welfare democratic set-up which has Justice as its most chershed and prominent beacon-light in the Preamble of the Constitution. One of the main reasons for this serious but avoidable infirmity in the criminal justice as administered in the magistrate Courts of Delhi is the conferment of judicial powers on executive officers, who, being far too busy with executive functions, understandably find it difficult to imbibe the essential judicial spirit required in satisfactorily dealing with Court cases. For the administration of criminal justice to inspire confidence of the people that they may nto, infrustration, be overtaken by the natural human instinct of revenge, it is of the greatest importance that the Courts possess the requisite ability;, aptitude, objective approach and knowledge of law and have reasonably adequate time at their disposal to deal with criminal cases conscientiously with the necessary detached judicial poise and in an atmosphere of judicial calmness.
Consideration of administrative or executive convenience is foreign to and has no place in the judicial mind and arbitrariness is tabbod in judicial orders. This Court has more than once emphasised the emergent importance of improving the quality of criminal justice in Delhi which provides to the visitors from abroad the first glimpse of our constitutional set-up and our democratic Constitutional work. We accordingly consider it proper to repeat once again that the sooner the criminal administration of justice is improved in Delhi, the better for the Rule of Law, for our orderly society and for our democratic mode of life.
(8) In the result, this appeal succeeds and allowing the same, we set aside the impugned order of acquittal and remit the case back to the learned Magistrate for further proceedings in accordance with law and in the light of the observations made above. If the learned Magistrate is overworked on the executive side, we hope he would seek relief from toher unjudicial work as envisaged in the High Court Rules and Orders, Vol. Iii, Chap. 1-A, Rule 9. Judicial cases must never be allowed to suffer if our civilised orderly democratic life is to survive and grow to a healthy stature. It must never be forgtoten that ntohing makes the citizens more content with their state than unadulterated, pure and speedy justice and ntohing makes people more frustrated than unjust or poor quality of justice.
(9) The parties are directed to appear in the Court below on 6-11-1967 when antoher date would be given for further proceedings in accordance with law and the foregoing directions.
(10) Appeal allowed.