Nazir-E-Awaqf vs S. Bashiruddin Ashraf on 14 February, 1961

Patna High Court
Nazir-E-Awaqf vs S. Bashiruddin Ashraf on 14 February, 1961
Equivalent citations: AIR 1961 Pat 354, 1961 CriLJ 356
Author: R Singh
Bench: R Singh


Ramratna Singh, J.

1. This is an appeal under Section 417 (3) of the Code of Criminal Procedure by a complainant against an order of acquittal passed under Section 247 of the Code.

2. The respondent was the Mutawalli or trustee of a Sunni Waqf property. All such waqfs are, since the enactment of the Bihar Waqf Act, 1947, under the control of a body known as Bihar Subai Sunni Majlis-E-Awaqf, presided over by a person known as Sadar. There is a provision in the Act for the prosecution of a trustee for his failure to furnish accounts to the Majlis in respect of the waqf property in his charge.

It is said that the respondent failed, in spita of the orders of the Sadar, to furnish the accounts or a report about the affairs of the waqf estate and to carry out other orders in respect of the samp. For this failure, an official of the Majlis, called Nazir, filed a complaint with the authority of the Sadar in writing as contemplated by Section 66 (1) of the said Act. The respondent appeared and contested the allegations made against him.

3. The case has a chequered career. A complaint was filed on the 3rd November, 1953. There are petitions before the Sessions Judge and the High Court on different occasions, and the proceedings had to he stayed several times. When the last revision petition was rejected by Sessions Judge and the record was received, the trying Magistrate passed an order on the 5th February 1958 for the issue of notice against the accused for his appearance on the 23rd December 1958 along with notices against his sureties to produce him on that date or the next date, the 23rd December 1958, the service reports of the notices, which had to be served in another district, were not received and fresh notices were issued;

The case was subsequently transferred to the court of another Magistrate, who issued summons to the accused and notice to the bailor on the 16th Junuary 1959. The service reports were not received on the next date, the 16th February 1959. On the last date, that is, the 4th March 1959, the accused was present and he filed two petitions. One petition was for bail. In the other petition the accused prayed for his acquittal under Section 247 on the ground that the complainant was absent. Hazri had been filed by the law, agent of the complainant. But the law agent also did not respond on repeated calls by the court; and at about 1-40 P.M. the Magistrate acquitted the accused under Section 247. This appeal is directed against this order of acquittal.

4. The learned Advocate for the appellant referred to one of the grounds mentioned in his petition, supported by an affidavit, that the law agent of the complainant remained in court till about 1 P.M., but he left the court when he found that the accused had not turned up till then; and the accused taking advantage of this situation appeared thereafter and got the complaint dismissed. A copy of this petition was, however, not served on the respondent or his advocate, who came to know of this allegation, for the first time, on the day the appeal was heard.

Thereafter the respondent filed a counter-affidavit on the 7th February 1961 stating that on the 4th March 1959, neither the complainant nor his lawyer appeared in the Magistrate’s court from 11 A. M. to 1-45 P. M. and consequently, the Magistrate passed an order of acquittal. A copy of this counter affidavit was made over to the advocate for the appellant on the 7th February 1961. At the request of the respondent’s advocate this appeal was again listed, but on the date fixed no one on behalf of the appellant appeared in this Court. ,

It is, therefore, difficult to accept the statement made in the affidavit filed on behalf of the appellant. Moreover, when the law agent had filed hazri on the 4th March 1959 in the Magistrate’s court, be ought to have waited till the rising of the court and he was not justified in leaving the court at about 1 P. M. without any intimation to the court in writing or otherwise. It is also remarkable that the complainant himself was not admittedly present in court, and under Section 247, the complainant has to be present, unless his presence is dispensed with by the court. Admittedly, several months before the 4th March 1959 a petition had been filed by the complainant, that is the Nazir of the Majlis, to dispense with his personal attendance in court, but this prayer had not been allowed so far. It was, therefore, the complainant’s duty to be present in the court, or at least to arrange for witnesses to be examined in court. The learned advocate for the appellant has submitted that the law agent of the complainant was present on several dates prior to the 16th February 1959, but the accused was absent and, therefore, the law agent absented himself on the 4th March 1959 in good faith.

But it appears that on the 1st August 1958 also the accused had filed; a petition praying for an order of acquittal on the allegation that the complainant was absent on the 14th June 1958, the 9th July 1958 and the 19th July 1958. The Magistrate took a lenient view then and rejected the prayer of the accused. It is true that on several dates the law agent of the complainant was present and the case had to be adjourned on account of the absence of the accused; but this fact cannot affect the order of the Magistrate passed on the 4th March 1959, when the law agent had merely filed a hazri and then absented himself from, the court in such an old case.

5. Section 247 lays down the general principle that the accused is entitled to an acquittal, if the complainant is absent without sufficient cause. The complainant has not shown sufficient cause for his absence or the absence of his law agent on the 4th March 1959. It was held in Sudhir Kumar Neogi v. Emperor, AIR 1942 Pat 46 that, when the complainant is absent, the only course open to the Magistrate is to, ordinarily, acquit the accused, or for proper reason, adjourn the case.

In the present case, the Magistrate adopted the ordinary course, ‘apparently because he did not find adequate reason to adjourn the case; and it cannot be said that the Magistrate exercised his discretion wrongly. The learned advccate for the appellant has relied on a subsequent decision of this Court in State of Bihar v. Deodar Jha, AIR 1958 Pat 51, where it was held that refusal by a Magistrate to acquit the accused under Section 247, when the complainant was absent, was justified. This decision does not, however, help the appellant.

That was an appeal against the acquittal of the accused by the Magistrate on merits of the case long after the dates on which the complainant had been absent and the Magistrate had adjourned the case. During the hearing of the appeal against the acquittal on merits, it was argued on behalf of the accused respondent that the Magistrate ought to have acquitted him on account of the absence of the complainant on the 9th April and the 24th April. But the court found that the complainant had turned up after the first hour on the 9th April and he had intimated to the Magistrate on the 24th April that he would not be able to come to court on that date.

This Court observed that the order to be passed under Section 247 depends upon the facts of each case and held that, in view of the facts stated above, the Magistrate was justified in not acquitting the accused and in adjourning the case on the 9th April and the 24th April. In the present case, however, on the facts stated already, the Magistrate was justified in acquitting the accused, and there is no justification for interference with his order.

 6.     In  the result, there is no merit in  the appeal.     It is  accordingly  dismissed. 


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