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1960 DIGILAW 129 (ORI)

BRUNDABAN BASTIA v. BIRABAR BASTIA

1960-09-08

R.L.NARASIMHAM

body1960
JUDGMENT : Narasimham, C.J. - In this revision petition the legality of the order of a Magistrate reviving a summons case which had ended in acquittal u/s 2-17, Criminal Procedure Code on account of the absence of the complainant, is under challenge. 2. On the complaint of the opposite party, on the 19th August 1959, the Petitioner and some other persons were summoned u/s 323, I.P.C. for the 22nd September 1959. On the 22nd September 195, the Magistrate passed the following order: Complainant is present. Service return of summons not back. Await and put up on the 20th October, 1959. On the 20th October, 1959 he passed the following order: Complainant is absent on repeated calls persons are acquitted u/s 247, Code of Criminal Procedure It appears that on that day the accused persons also did not appear before the Court. Then, on the 3rd November 1959, the complainant filed a petition before the Magistrate for cancelling his order of acquittal, and 'On the next day (4th November 1959) the Magistrate revived the case and summoned the accused persons for the 16th December 1959. On revision, the learned Additional District Magistrate held that the Magistrate's order of revival was correct inasmuch as his earlier order dated the 20th October 1959 acquitting the accused u/s 247 Code of Criminal Procedure, was a nullity as that date was not the date fixed either for the appearance of "the accused" or "for the hearing of the case". 3. Section 247, Code of Criminal Procedure empowers a Magistrate to acquit an accused if summons had been issued on a complaint and upon the date appointed for the appearance of the accused or any day subsequent thereto-to which the hearing may be adjourned the complainant does not appear. Thus, the jurisdiction of the Magistrate to acquit an accused person under the aforesaid section arises only if the complainant does not appear either (1) on the day appointed for the appearance of the accused or (2) on any day subsequent thereto to which the hearing may be adjourned. Thus, the jurisdiction of the Magistrate to acquit an accused person under the aforesaid section arises only if the complainant does not appear either (1) on the day appointed for the appearance of the accused or (2) on any day subsequent thereto to which the hearing may be adjourned. The expression 'hearing' has not been defined anywhere, but in Section 242, Code of Criminal Procedure which occurs in the same Chapter as-section 247 of the Code, it is mentioned that after complying with the provisions of Sections 242 and 243 Code of Criminal Procedure the Magistrate shall proceed to hear the accused and take such evidence as may be produced in his defence. : It is reasonable to interpret the word "hearing" occurring in Section 247, Code of Criminal Procedure in the light of the meaning given to the word appear" occurring in Sub-section (1) of Section 244 Code of Criminal Procedure that word, in the context would apply only when the evidence of the complainant and his witnesses is being taken by the Court, or when an adjournment is granted for that purpose. If therefore, on the unchallenged facts, it is clear that the order of acquittal was passed u/s 247 Code of Criminal Procedure on a date fixed neither for the appearance of the accused nor for the hearing of the case, that order would be without jurisdiction. 4. But the question still remains whether the Magistrate can, in such circumstances, treat his order of acquittal as a nullity, and revive the proceeding subsequently; or else whether the acquittal being a 'judgment' within the meaning of Section 369 Code of Criminal Procedure is final and the only remedy open to the aggrieved party is to move the High Court, in revision, to set aside the same. 5. In Achambit Mandal Vs. Mahatab Singh it was pointed out that where an order of acquittal was passed u/s 247, Code of Criminal Procedure on a date not contemplated by that section, the order was a nullity and may be ignored by the Magistrate. This view of the Calcutta High Court was followed in a decision of the Allahabad High Court in Babu Ram Vs. Ram Charan Lal and Another. This view of the Calcutta High Court was followed in a decision of the Allahabad High Court in Babu Ram Vs. Ram Charan Lal and Another. where it was hela that where an order of acquittal u/s 247 Code of Criminal Procedure was passed on a wrong date, and the Magistrate on subsequently realising the mistake ignored that order and proceeded with the case, there was nothing illegal in his doing so. In Krihna Mohan v. Sudhakar Das 19 C.L.T. 330, a Bench of this Court also pointed out that even subordinate Criminal Courts have limited inherent powers which may be exercised subject to certain restrictions mentioned in that judgment. In a recent decision of this Court reported in Hadibandhu and Ors. v. Panchandn Sahu 26 C.L.T. 416, the view taken by the Calcutta High Court in Achambit Mandal Vs. Mahatab Singh was reaffirmed, but it was also pointed out that the power of the Magistrate to ignore an order u/s 247, Code of Criminal Procedure and to revive the proceeding can be exercised only if the order of acquittal was a nullity, and not where it was held by a superior court to be either improper 'or illegal on other grounds. 6. Mr. Murty for the Respondents, however, invited my attention to a series of decisions, where it was held that once an order of acquittal was passed u/s 247 Code of Criminal Procedure the Magistrate became functus office and had no jurisdiction to ignore that order and revive a criminal proceeding unless that order was set aside by a superior court. 7. But if these decisions are carefully examined, it will be found that, there, on the admitted facts, the order of acquittal passed by the Magistrate concerned could not be said to be without jurisdiction. Thus in Nityananda Koer Vs. Rakhahari Mirsa the case was adjourned to the 8th August 192 "for hearing of the case". On that day due to the absence of the Complainant the accused were acquitted u/s 247 Code of Criminal Procedure. In Kiran Sarkar and Another Vs. King Emperor the accused was summoned for the 23rd January 1923. On that day the complainant was absent and the Magistrate acquitted the accused. That was the day fixed for the appearance of the accused. In Devarakonda Lakshminarasimham Vs. Nalluri Bapanna and Others after examination of a few prosecution witnesses. In Kiran Sarkar and Another Vs. King Emperor the accused was summoned for the 23rd January 1923. On that day the complainant was absent and the Magistrate acquitted the accused. That was the day fixed for the appearance of the accused. In Devarakonda Lakshminarasimham Vs. Nalluri Bapanna and Others after examination of a few prosecution witnesses. The case was adjourned to the 25th January 1926, for "further evidence" and on that date due to the absence of the complainant, the accused were acquitted u/s 247 Code of Criminal Procedure. Here it is the jurisdiction of the Magistrate was beyond doubt. In National Iron and Steel Co., Ltd. and Others Vs. Electric Inspector the examination of the prosecution witnesses had actually commenced and the case, was fixed for the 25th April 1941 for "further hearing". On that day the accused were acquitted due to the absence of the complainant, and the learned Judges of the Calcutta High Court held that the order of acquittal was not a nullity and the Magistrate was not justified in reviving the proceeding on a subsequent date. The earlier view in Achambit v. Mahatab Singh, was noticed and the learned Judges pointed out that the principle laid down herein would not apply where infrom the records everything was in order and prima facie the Magistrate acted with jurisdiction". In a recent decision of the Patna High. Court reported in Rasik Tatma Vs. Bhagwat Tanti after the appearance of the accused summons was issued for the appearance of the prosecution witnesses and the case was posted to the 16th March 1954. On that date the complainant failed to appear and the accused were acquitted u/s 47, Code of Criminal Procedure. Subsequently, when the Magistrate revived the proceeding the learned Judges held that the Magistrate had no jurisdiction. 8. Mr. Murty then contended that the power of the Magistrate to ignore an order of acquittal u/s 247, Code of Criminal Procedure on the ground that it was a nullity, as pointed out in Nityananda Koer Vs. Rakhahari Mirsa, & : Kiran Sarkar and Another Vs. King Emperor is exercisable only when the order was passed on a wrong date and that it will not be proper to extend this principle further. Rakhahari Mirsa, & : Kiran Sarkar and Another Vs. King Emperor is exercisable only when the order was passed on a wrong date and that it will not be proper to extend this principle further. According to him the complainant in the present case, had entered appearance on the 22nd September, 1959 and the case was adjourned, in his presence to the 20th October 1959, for being put up with the service return of summons. The complainant thus knew the date to which the case was adjourned and ought to have been present on the next date, viz. 20th October 1959; and when he failed to appear on that date, the Magistrate had Jurisdiction to acquit the accused. In support of this argument he relied on AIR 1940 357 (Nagpur), where it was held that the expression "date fixed for hearing" used in Section 247, Code of Criminal Procedure would include not only the date on which the witnesses,. were actually examined, but also the dates to which the case may be adjourned from time to time, to enable the Court to take some step or other towards the progress of the trial. 9. The aforesaid Nagpur case is clearly distinguishable because, there, some of the accused bad actually entered appearance and the case was adjourned to particular day for the appearance of another accused. The learned Judge was careful enough to observe as follows: Accused 1 who was admitted to bail was bound to appear on the 12th September 1939, and as he had under taken to produce his wife on this date it must also be treated as a date appointed for the appearance of this accused and accused No. 1 and further to see what should be done in the case after seeing the return to the processes against accused No. 3. 10. It is thus clear that in the Nagpur case the order of acquittal was passed on a date fixed for the appearance of 2 out of three accused persons. But in the instant case, the order sheet of the learned Magistrate does not show that the 20th October 1959 was fixed "for the appearance of any of the accused" or "for the hearing of the case". The learned Magistrate merely wanted to see the service return of the summons. But in the instant case, the order sheet of the learned Magistrate does not show that the 20th October 1959 was fixed "for the appearance of any of the accused" or "for the hearing of the case". The learned Magistrate merely wanted to see the service return of the summons. It will be idle to conjecture as to what further steps the Magistrate would have taken on receipt and scrutiny of the: service return. Whatever that may be, the 20th October 1959 cannot be said to be the date contemplated in Section 247, Code of Criminal Procedure Hence the Magistrate had not even prima facie jurisdiction to acquit the accused. His order of acquittal must accordingly be a nullity and his subsequent order reviving the proceeding was justified. The principle laid down in Achambit 11. Mahatab Sing (1), would apply not only when an order u/s 247 Code of Criminal Procedure is passed on a wrong date, but also when such an order is passed on a date not contemplated by that section.