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1978 DIGILAW 114 (KAR)

C. B. CARIAPPA v. STATE OF KARNATAKA

1978-04-17

M.S.NESARGI

body1978
( 1 ) THIS petition is directed against the order dated 12-7-1977 passed by the Metropolitan Magistrate, II Court, Bangalore City, in C. C. No. 1040 of 1977, condoning the absence of the complainant viz. , the Senior inspector of Factories, Bangalore Division, Bangalore, representing the State, and directing that the case be taken on file for the reasons stated in the affidavit of the said Senior Inspector of Factories. What had happened, may be narrated briefly as follows : ( 2 ) THE Senior Inspector "of Factories, Bangalore Division, Bangalore, submitted a complaint as against the petitioner on 21-6-1977, in the said court, alleging that the petitioner had committed an offence punishable under S. 92 of the Factories Act, 1948. The Magistrate took cognizance and directed issue of summons returnable by 30-6-1977. On 30-6-1977 the complainant and the petitioner were absent. The learned Magistra acquitted the petitioner by exercising his powers under S. 256 (1) Cr. PC. , 1973 (to be hereinafter referred to 'as the new Code ). On 12-7-1977, the learned Magisrate acted on the affidavit filed by the Senior Inspector of factories, and set aside the order passed by him on 30-6-1977 and ordered that the case was restored to file after condoning the absence of the Senior inspector of Factories. ( 3 ) SEC. 256 (1) of the new Code is the same as S. 247 of the Code of criminal Procedure 1898 (to be hereinafter referred to as the old Code ). There is a slight difference in the wording of the two sections, but that difference does not matter for the purpose of this revision petition. It is contended on behalf of the petitioner that the Magistrate had no power to set aside or review his own order passed on 30-6-1977 and that the order of acquittal had become final. There is a slight difference in the wording of the two sections, but that difference does not matter for the purpose of this revision petition. It is contended on behalf of the petitioner that the Magistrate had no power to set aside or review his own order passed on 30-6-1977 and that the order of acquittal had become final. Sec. 256 (1) of the new Code lays down that if the summons had been issued on a complaint and the complainant, does not appear on the day appointed for the appearance of the accused or any day subsequent thereto, the Magistrate shall, notwithstanding anything contained in the earlier previsions, acquit the accused, unless for some reason he considers it proper to adjourn the hearing of the case to some other day There is no provision in the Code empowering the Magistrate to review or set aside his own order passed under these circumstances. ( 4 ) IN the decision in Nityananda Koer v. Rakhahari Misra, AIR. 1924 Cal. 96. a Division Bench of the Calcutta High Court has held while considering the provisions of Sec. 247 of the old Code, that once an order under Sec. 247 acquitting the accused was passed, no application for the revival of the proceedings can be entertained unless the order under Sec. 247 is set aside by a superior Court. In the decision in (Devarakonda) lakshminarasimham v. Nallurti Bapanna, AIR. 1927 Mad. 473. Curgenven, J. has, while considering sec. 247 of the old Code, held that where an accused is acquitted under sec. 247, the Magistrate is. incompetent, to restore the case against him on the application of the complainant. To the similar effect is the view expressed by a Division Bench of the Patna High Court in the decision in rasik Tatma v. Bhagwat Tanti, AIR. 1958 Pat, 239. It is laid down as follows after considering the provisions of Sec. 369 of the old Code : "in a criminal case, the Magistrate, after once signed and completed his order, has no jurisdiction to review or revise the same. " earlier decision of the High Court in the decision reported in A. I. R. 1923 patna 532, has been followed. I respectfully agree with the views expressed in the afore-mentioned decisions. " earlier decision of the High Court in the decision reported in A. I. R. 1923 patna 532, has been followed. I respectfully agree with the views expressed in the afore-mentioned decisions. ( 5 ) IN view of the foregoing reasons, the order dated 12-7-1977 passed by the Metropolitan Magistrate, II Court, Bangalore City, in CC. NO. 1040 of 1977, cannot be sustained. Hence, this petition is allowed and the said order is set aside. --- *** --- .