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Criminal Appeal No. 4 of 1950, decided on 24th April 1951 against the order of Kh. Ghulam Haider Gagroo, Sub‑Judge Magistrate, 1st Class, Bagh.

, S. 247‑Under Government Notification all cases were to be tried according to Procedure Prescribed for trial of summons cases‑Complainant absent in case under Ss. 494 and 380 A. P. C.‑Accused entitled.

The effect of the Notification is to do away with the pro cedure prescribed in the Criminal Procedure Code for the trial of warrant cases as it is specifically mentioned in the Notification that all cases whether they are summons cases or warrant cases will be tried according to the procedure prescribed for the of summons cases by Chapter 20 of the Criminal Code. This being the case the accused were entitled to an acquittal under section 247, if the complainant was absent.

A. I. R. 1923 Mad. 439 referred to.

Kh. Muhammad Sharif, Advocate‑General for Azad J. & Govt.

This is an appeal by the Government against the order of acquittal passed by Kh. Ghulam Haider Gagroo, Sub‑Judge, Magistrate of Bagh, Poonch District in a complaint brought by one Fateh Alam Khan against his wife Mst. Qasim Bi and others under sections 494 and 380, A. P. C. Perusal of the lower Court's proceedings show clearly that the accused were tried under the procedure laid down for the trial of summons cases though the offence disclosed in the complaint were triable as a warrant case. The learned Magistrate after examining the accused proceeded with the case and eventually acquitted the accused under section 247 of the Code of Criminal Procedure on the ground that the complainant was absent on the adjourned date of hearing.

It is contended by the learned Advocate‑General that the general principle is that the right of the accused to benefit under section 247 Criminal Procedure Code, does not depend on the procedure which the‑ Magistrate chooses to adopt but on the nature and class of the offence for which he is being tried at the time of the complainant's failure to appear in Court. Re liance is placed in that respect on A. I. R. 1923 Mad. 439. The principle referred to by the learned Advocate‑General, however, does not avail him in the present case.

The accused in the present case were tried by summons case procedure not because the Magistrate was of the opinion that the complainant's allegations disclosed that a minor offence 'was committed and that be could adopt a summons procedure for the trial, but he did so in view of the Notification issued by the Government under section 45 of the Azad Kashmir Laws Code 1949.

The second clause of the above Notification runs as follows:‑

"The procedure prescribed for the trial of summons cases by Chapter 20 of the Criminal Procedure Code shall be adopted by the Courts in all cases till further orders, subject, however, in the case of summary trials, to the provisions of sections 263 and 265 of the Code."

The effect of the Notification was in my opinion to do away with the procedure prescribed in the Criminal Procedure Code for the trial of warrant cases as it is specifically mentioned in the clause reproduced above that all cases whether they are summons cases or warrant cases will be tried according to the procedure prescribed for the trial of summons cases by Chapter 20 of the Criminal Procedure Code. This being tine case the accused were entitled to an acquittal under section 247, if the com plainant was absent. It is for the Government to see whether the trial of warrant cases by the procedure prescribed for the trial of summons case will hamper the justice or not. The business of the Court is simply to follow the procedure laid down for the trial of criminal cases. In the circumstances I have no option but to dismiss the appeal. It is accordingly dismissed. Before concluding I might remark that it is high time that steps be taken to cancel the above, Notification which was issued under abnormal circumstances to expedite the trial of cases and to restore the procedure for the trial of both summons and warrant cases given in the Criminal Procedure Code.

K. M. A. Appeal dismissed.

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