JUDGMENT
Mahendra Bhushan Sharma, J.
1. This is an appeal against acquittal in a complaint case of the accused-respondents. The learned Judicial Magistrate, Pipar City under his judgment dated October 28, 1982 under Section 256 Cr. P.C. dismissed the complaint and acquitted the accused-respondents.
2. The facts, in brief, are that a complaint under Section 448, 341 and 323 of the Indian Penal Code was filed by the appellant in the Court of Judicial Magistrate Pipar City against the accused respondents on April 21, 1982, wherein it was stated that on April 9, 1982 in the evening at about 4 p.m., the accused-respondents came in a tracter, entered illegally in the Bada of the complainant and obstructed his way with the help of the thorny bushes which they have brought with them. When the complainant asked them not to do so then the accused-respondents gave beating to him. In support of the complaint, the statement of the complainant under Section 200 of the Code of Criminal Procedure and of Jabarsi and Chandram under Section 202 Cr.P.C. were recorded and the learned Magistrate took cognizance of the offence under Sections 448, 341 and 323 of the Indian Penal Code against the accused-respondents. The bailable warrants were issued against the accused-respondents. Two accused-respondents Ladusingh and Raghuveersingh put in appearance on June 15, 1982 and furnished their personal and surety bonds. Accused Raghuveersingh was not present on the next date. An application was filed that accused-respondent Kansingh was a child and as such should be tried by the Children Court. The Court directed on July 28,1982 that the school certificate in support of the proof of age should be produced. The case was adjourned for Septemer 1, 1982 and again adjourned for October 27, 1982 for production of certificates. It appears that October 27 and 28, 1982 were holidays and, therefore, the case came up before the learned Magistrate on October 29, 1982 and on that day neither the accused-persons nor the complainant were present. The learned Court on the application of the counsel for the accused persons exempted them from appearance in the Court that day. In the absence of the complainant he dismissed the application and acquitted the accused-respondents.
3. The contention of the learned Advocate for the complainant is that the Court had fixed October 27, 1982 only for the production of a certificate in respect of the age that Kansingh was a child within the meaning of the definition as given in the Children Act. On that day the presence of the complainant was not necessary. The case could not be taken up on October 27, 1982, and was taken up on October 29, 1982, on which date the complainant was not present and could not know about the date. Even if it be assumed that he should have been present on October 29, 1982, his presence was not necessary as no progress in the case was to be made and, therefore, the learned Court must have exempted the appearance of the complainant and should have adjourned the case. According to the learned Counsel the learned Court lost sight of the proviso to Section 256 of the Code of Criminal Procedure.
4. I have considered the arguments. From the narration of facts it will be clear that on October 27, 1982 or even on Oct. 29, 1982 the presence of the complainant was not necessary as the case was only fixed for production of a certificate as to whether Kan Singh was a child within the meaning of the definition of child as given in the Rajasthan Children Act. No progress in the case was to be made. Under the proviso to Sub-section (1) of Section 256 of the Code of Criminal Procedure if the Magistrate is of the opinion that the personal attendance of the complainant is not necessary the Magistrate must dispense with his attendance and proceed with the case. The learned Magistrate did not consider the relevancy of the proviso in this case. The Magistrate should not resort to short cuts in disposing of the case merely because the complainant is absent on one day and more so on a day which is not fixed but the case is taken because on the date the case was a holiday and as such the case was taken on re-opening of the Courts. Though the case is a petty case, but in order to see that the provisions of law are complied with by the Magistrate and they do not resort to short cuts in. disposal of the case, allow this appeal, set aside the judgment of the learned Munsif Magistrate Pipar City dated October 29, 1982 and and sent the case back to him with a direction that he shall proceed with the case in accordance with law. The complainant is directed to be present in that Court on March 3, 1986. The accused persons are not present, the Magistrate is directed to summon them and thereafter proceed in the matter.
