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1970 DIGILAW 370 (ALL)

Bulaki Das Gupta v. Baba Jamuna Das

1970-09-16

B.D.GUPTA

body1970
ORDER B.D. Gupta, J. - This revision arises out of an order dated the 9th of January, 1968, passed by the ADM (J), Agra, whereby an order dated the 7th of September, 1967, passed by a Magistrate was set aside and the case in the course of which the order of the 7th of September, 1969, Had been passed was sent back to the court of the Judicial Magistrate for further enquiry. After hearing learned Counsel for the parties at some length it appears manifest that the order sought to be revised by this petition must be set aside. 2. In order to appreciate the question which has been raised, it is necessary to recite the following facts: Sometime in 1965 the sole opposite party to this revision Baba Jamuna Das filed a complaint alleging offences Under Sections 323/147/504/506 IPC. The accused named in the said complaint were the very same persons who are the five Applicants in this revision. Summons were issued to the aforesaid accused for an offence u/s 323 IPC only and after recording the evidence led by the complainant, the learned Magistrate passed an order on the 2nd of September, 1966, wherein, after arriving at the conclusion that there was no substance in the prosecution case, the operative portion of the order passed by the learned Magistrate was recorded as follows: The accused are, therefore, discharged. A perusal of the judgment of the learned Magistrate makes it clear that he took the view that the evidence led by the complainant consisted of testimony of interested witnesses, that no independent witness had been examined, that the complainant's version was not supported by any medical evidence and that, therefore, the said version was absolutely unreliable. 3. Against the aforesaid order dated the 2nd of September, 1966, Baba Jamuna Das filed a revision which was dismissed by an order of the ADM (J) dated the 24th of November, 1966. 3. Against the aforesaid order dated the 2nd of September, 1966, Baba Jamuna Das filed a revision which was dismissed by an order of the ADM (J) dated the 24th of November, 1966. The learned District Magistrate appears to have taken the view that the learned Magistrate had treated the case as a warrant case and not as a summons case and the grievance made on behalf of the complainant that the complainant had not exhausted his evidence in the case, which was coupled with 'a suggestion on complainant's behalf that remand was unnecessary as the complainant had the option of filing a fresh complaint, was accepted by the ADM with the result that he dismissed the revision observing that the complainant may, if he so desired, seek his remedy by way of a fresh complaint. 4. Thereafter Baba Jamuna Das filed a fresh complaint. There is no controversy that this was a complaint in regard to the same incident which was the subject-matter of the trial in which the trial Magistrate had passed the order of 'discharge' dated the 2nd of September, 1966. Following this complaint, notice appears to have been issued to the Applicants in this revision who appeared and the plea taken on their behalf before the trial Magistrate was that by reason of the earlier order dated the 2nd of September, 1966, the complaint was not maintainable. The learned Magistrate accepted this contention and passed an order on the 7th of September, 1967, whereby he quashed the proceedings arising out of the complaint. Against the aforesaid order of the 7th of September, 1967, the complainant went up in revision. The learned ADM took the view that the order of the trial Magistrate dated the 7th of September, 1967, quashing the proceedings amounted to an order revising the previous order whereby the Applicants had been summoned to appear, that the said order was not within the competence of the learned Magistrate as it amounted to exercise of revisional jurisdiction. On this view of the matter the learned ADM, by the order which is the subject-matter of this petition in revision, set aside the order of the learned Magistrate dated the 7th of September, 1967 and sent the case back to the trial Magistrate for further enquiry. 5. On this view of the matter the learned ADM, by the order which is the subject-matter of this petition in revision, set aside the order of the learned Magistrate dated the 7th of September, 1967 and sent the case back to the trial Magistrate for further enquiry. 5. Learned Counsel for the Applicants has urged that the order of discharge passed by the learned Magistrate on the 24th of November, 1966, in proceedings arising out of the first complaint must be deemed to be an order of acquittal with the result that, keeping in view the provisions contained in Section 403 Code of Criminal Procedure, proceedings arising out of the present complaint are not maintainable. Learned Counsel has urged that, though the expression used by the learned Magistrate in the course of his order dated the 24th of November, 1966, was 'discharged', the said order must be treated as an order of acquittal in view of the reasons given by the learned Magistrate in the course of the order recorded by him. 6. Learned Counsel has relied on a decision of the Madras High Court in the case of Palchami and Others Vs. Paramasiva Gounder, AIR 1958 Mad 197 where in it was held that an order of discharge in a summons trial case must be deemed to be an order of acquittal. 7. Reliance has also been placed on a decision recorded by this Court in the case of Jai Prakash v. State 1961 AWR 149 in which an order of release u/s 249 Code of Criminal Procedure was construed as an order of acquittal. 8. The opinion recorded by the learned ADM in his order dated the 24th of November, 1966, that the case had been tried as a warrant case was obviously incorrect because the Applicants had been summoned for the offence punishable u/s 323 IPC only and there is nothing before me to indicate that the Applicants had been tried as in a warrant case. 9. Chapter XX of the Code of Criminal Procedure contains provisions laying down the procedure which must obtain at the trial of summons cases by Magistrates. A perusal of those provisions makes it clear that in such trial the final order contemplated can only be one of conviction or acquittal. 9. Chapter XX of the Code of Criminal Procedure contains provisions laying down the procedure which must obtain at the trial of summons cases by Magistrates. A perusal of those provisions makes it clear that in such trial the final order contemplated can only be one of conviction or acquittal. An order of discharge is not contemplated in trial of summons cases for the manifest reason that in such cases the framing of a charge is neither contemplated nor necessary. The contents of the order of the learned Magistrate dated the 2nd of September J 966 and the findings therein make it manifest that the said order must be treated as an order of acquittal. The mere fact that the learned Magistrate used the expression 'discharged' would make no difference. Keeping this in view, there can be no controversy that the proceedings arising out of the present complaint are not maintainable in view of the provisions contained in Section 493 Code of Criminal Procedure. The order passed by the learned Magistrate on the 7th of September, 1967, whereby the proceedings in the case were quashed was, therefore, not only perfectly proper but the only order that could be passed. 10. Accordingly this revision is allowed, the order of tip learned ADM dated the 9th of January, 1968, is set aside and that of the trial Magistrate dated the 7th of September, 1967, is restored.