ORDER N.M. Golvalkar, J. 1. This is a reference under Section 438, Criminal Procedure Code, by the Additional Sessions Judge, Jabalpur, recommending that the order dated 13-8-1958 of the Magistrate 2nd Class, Sehora, dismissing the complaint of Baboolal against non applicants 2 to 5 and discharging them under Section 259, Criminal Procedure Code, be set aside being illegal and incorrect. 2. The reference has been made in the following circumstances. 3. The complainant Baboolal filed a complaint against the accused under Sections 482, 486, Indian Penal Code, read with Section 68(2) of the Trade Marks Act on 27-3-1957. After the complainant and his witnesses on later dates, the complaint was registered on 3-4-1957 under Sections 482 and 486, Indian Penal Code, and Section 68 of the Trade Marks Act. The accused were ordered to be summoned and to produce certain property and account books. On 23-4-1957 to which date the hearing was fixed, only accused Daulatram was present. But it seems Shri Awasthy plead r appeared presumably for all the accused as he applied for dispensing with the presence of the accused. The trying Magistrate granted exemption provided the accused appeared in person in Court once on the next date. Thereafter on 13-7-1957 the Magistrate granted exemption to accused 1 to 3 and allowed them to appear through their counsel Shri Awasthy. The proceedings were however stayed pending decision of a civil suit and it continued stayed till 13-1-1958 on which date the Court decided to proceed with the trial on being informed of the decision of the civil suit. The accused were therefore summoned for 29-1-1958. The proceedings went on without any progress till 21-3-1958 and accused continued to be represented by Shri Awasthy pleader. Only accused Daulatram used to attend in person. It was on 21-3-1958 the Court finally rejected some objections raised by the accused. The Court, it is evident, first intended to summon the prosecution witnesses But on second thought decided to summon the rest of the accused presumably to have them in person instead of through their counsel. The case was posted to 14-4-1958 on which date the accused appeared through their counsel Shri Awasthy. The hearing as adjourned to 8-5-1958. In the meantime the record was sent to the Additional Sessions Judge in connection with some revision proceedings and it was received on 23-6-1958 when fresh summonses were issued to the accused. The case was posted to 14-4-1958 on which date the accused appeared through their counsel Shri Awasthy. The hearing as adjourned to 8-5-1958. In the meantime the record was sent to the Additional Sessions Judge in connection with some revision proceedings and it was received on 23-6-1958 when fresh summonses were issued to the accused. On the hearing of 26-7-1958. only accused Betibai and Heerabai were represented by Shri Awasthy pleader and the other accused were not served. The hearing was, therefore, adjourned to 3-8 1958. It was on this day the complainant as also his counsel were absent. Accused Daulatram was alone present and the rest of the accused were absent and their summonses were also not received back. But Shri Awasthy pleader was present presumably for all the accused. However as the complainant was absent the complainant was dismissed and the accused were discharged under Section 259, Criminal Procedure Code. It is this order which is the subject-matter of this revision petition. 4. I have purposely detailed the progress of the complaint proceedings just to show that the trying Magistrate, as has also been observed by the learned Additional Sessions Judge, had tried the case as a warrant case. Otherwise he could easily as a summons case proceed under Section 242, Criminal Procedure Code, when the representation of the accused through a lawyer was there. This intention to try the case as a warrant case is evident from his order to summon the prosecution, witnesses at first thought on 21-3-1958 but on second thought deciding to have the presence of the accused in person before him. That the case was being tried as a warrant case is further evident from the order of dismissal of the complaint and discharge of the accused under Section 259, Code of Criminal Procedure Nevertheless it is contended on behalf of the accused that the order of discharge has to be construed as an order of acquittal inasmuch as the trying Magistrate by adopting a wrong procedure of a warrant case, when the offences were triable as summons case, could not deprive the accused of their right of acquittal vested in them under Section 247, Criminal Procedure Code. I am in entire agreement with this submission. But at the same time valuable rights equally secured to the complainant cannot also be ignored. I am in entire agreement with this submission. But at the same time valuable rights equally secured to the complainant cannot also be ignored. It is now well settled that no party should be made to suffer by any error on the part of the Court committed while administering justice. 5. Now in the instant case the offences levelled against the accused were the offences affecting society though the complainant may be primarily interested in protecting his own rights in the trade. It the trying Magistrate had realised that in a summons case, he could either adjourn the hearing or acquit the accused dismissing the complaint, I am certain he would have preferred to adjourn the hearing. For the order in the alternative of acquitting the accused would have denied to the complainant for all times his right to secure redress for the wrongs done to him inasmuch as second complaint would have been barred. He, therefore, in the honest belief that he was trying the case as a warrant case passed the order discharging the accused under Section 259, Criminal Procedure Code, with this idea that the complainant may be able to file a fresh complaint. True that even then the order would have to be treated as an order of acquittal. But the matter does not end here. There being a specific order of discharge, the complainant honestly believed that he could not go up in appeal as now provided under Section 417, Criminal Procedure Code. He, therefore, chose the remedy of filing a revision petition and have the matter referred to this Court by the Sessions Judge. Had there been an express order of acquittal, the complainant would have definitely moved this Court for leave to appeal. Although what its ultimate fate would have been is a matter of speculation yet looking to the circumstances of the case I feel this Court would have intervened in the interest of justice and directed a fresh trial on merits by setting aside the order of acquittal. Here it would be pertinent to note that within a short period of the dismissal order, complainant's counsel had appealed in the Court at 12-30 P. M. But as the trying Magistrate found himself helpless nothing could be done. Here it would be pertinent to note that within a short period of the dismissal order, complainant's counsel had appealed in the Court at 12-30 P. M. But as the trying Magistrate found himself helpless nothing could be done. It is quite possible that if the counsel had been in attendance when the case was called he could have perhaps satisfied the Court for the absence of the complainant and would have secured an adjournment. So the honest error committed by the trying Magistrate in passing an express order of discharge under Section 259, Criminal Procedure Code, which no doubt has to be treated as an order of acquittal, should not come in the way of the complainant in securing justice in a Court of law. His rights are as much to be protected as those of the accused and mere technicalities should not defeat the ends of justice and allow wrongs to go unredressed. 6. The learned Counsel appearing for the accused to oppose the reference relied on several rulings to urge that the order of discharge has to be treated as an order of acquittal and as the provisions of Section 417,. Criminal Procedure Code, were not availed of no revision could be entertained. I readily accept this proposition of law, But even then the High Court's power under Section 561-A. Criminal Procedure Code, to prevent failure or miscarriage of justice in suitable cases are not affected. That in suitable cases where a situation, similar to the instant case, has arisen and valuable rights of the complainant, provided they are not of doubtful nature, are likely to be defeated, this Court can step in under the powers under Section 561-A, Criminal Procedure Code, is expressly recognised in some of the rulings relied upon by the counsel for the accused. I may therefore quote here under the relevant observations in some of them on that aspect. In the present application it is said that this Court is entitled to interfere. It may not of course convert an order of acquittal into an order of conviction, but it can set aside an order of acquittal and direct that further proceedings should be held. That view is quite right. (Pirag Lal v. Rustum Singh, AIR 1936 All. 658). In the present application it is said that this Court is entitled to interfere. It may not of course convert an order of acquittal into an order of conviction, but it can set aside an order of acquittal and direct that further proceedings should be held. That view is quite right. (Pirag Lal v. Rustum Singh, AIR 1936 All. 658). In the aforesaid case the High Court however on the facts came to the conclusion that the trying Magistrate had exercised his discretion judicially in ordering acquittal of the accused and no interference therefore was called for. 'Dismissal of the complaint if the complainant is absent and acquittal of the accused is the rule but the Court is given a discretion to adjourn the case for Lame reason if it thinks fit. The Court having full discretion in the matter it could not be said on the facts of this case that the Court exercised the discretion arbitrarily and not judicially. In any case I do not think that this is a fit case in which I should interfere with the exercise of the discretion of the trial Court." In cases of acquittal the Provincial Government has a right of appeal. If the Provincial Government does not choose to file an appeal and if a reference is made asking this Court to interfere with an order of acquittal the High Court will interfere only if there be radical and incurable irregularity or a complete disregard of the law and procedure or a manifest injustice which has got to be cured. Crown v. Laxmi Prasad, 1940 NLJ 399. Again in the aforesaid case of this Court, on merits no interference was called for. The only question that now remains for determination is whether I should use my inherent powers under Section 561-A, Code of Criminal Procedure to set right a clearly illegal order passed by the Magistrate. In my opinion powers under Section 561-A Code of Criminal Procedure should be sparingly used and it is only when it is necessary in the interest of justice, that the High Court should invoke these powers. I think that in order to make it necessary three conditions should be fulfilled. In the first place the injustice which comes to light should be of a grave character and not of a trivial character. I think that in order to make it necessary three conditions should be fulfilled. In the first place the injustice which comes to light should be of a grave character and not of a trivial character. * * * * The second condition which in my opinion should exist before the High Court exercises its inherent powers is that the injustice which is noted is of a clear and palpable character and not of a doubtful character. * * * * The third condition which should be ful-filled is that there exists no other provision of law by which the complainant could have sought relief. Ram Narain v. Mool Chand, AIR 1960 All. 296 . In the aforesaid Allahabad case, the High Court was satisfied only on the first condition and was also prepared to waive the third condition. But being satisfied that the injustice claimed was of a doubtful character there was no interference under Section 561-A, Criminal Procedure Code. However the views expressed in the aforesaid cases the rights of the High Court to exercise powers under Section 561-A, Criminal Procedure Code, were recognised in suitable cases In the instant case I have shown how palpable and grave injustice would be to the complainant by allowing the order of discharge to stand and how the complainant would have no remedy to secure redress for the wrongs done to him. Then all this the complainant would be suffering for no mala fides on his part. Therefore in my opinion this is a fit case where this Court should exercise its powers under Section 561-A, Criminal Procedure Code, and accordingly I do so. Therefore for the reasons stated herein before and not for the reasons recorded by the learned Additional Sessions Judge I accept the reference and in exercise of my powers under Section 561-A, Criminal Procedure Code, set aside the order dated 13-8-1958 of the Magistrate 2nd Class, Sehora, dismissing the complaint and discharging the accused. The Magistrate shall now proceed with he trial as a summons case according to law. The records shall now be returned for further action Application dismissed