Research › Browse › Judgment

Madras High Court · body

1999 DIGILAW 1713 (MAD)

The State of Mysore v. Neelkanthgouda

1999-11-30

C.HONNIAH

body1999
Order.- This is a reference by the District Magistrate, Raichur, under section 438, Criminal Procedure Code against the orders of the First Class Magistrate, During dated 19th November, 1964 discharging the respondent (accused) of the offence under section 395, Indian Penal Code and dated 16th February, 1965> acquitting the respondents of the offences under sections 379, 341, 342 and 323; Indian Penal Code in case No. 20/2 of 1964. The Police of Jalhalli in Deodurg Taluk, Raichur District filed a charge-sheet against the respondents for offences under sections 395, 341, 342 and 323, Indian. Penal Code on the allegation that on 17th March, 1964 at about 10-30 p.m. they beat one Ayyappa (P.W. 1) and forcibly removed from his person, a wrist watch, a gold chain, a silver ‘lingadakai,‘a torch and a sum of Rs. 45. The learned Magistrate held an enquiry under section 207-A, Criminal Procedure Code. He recorded the evidence of three witnesses and after considering the evidence and documents referred to in section 173, Criminal Procedure Code came to the conclusion that the evidence and documents disclosed no grounds for committing the respondents for trial for the offence under section 395, Indian Penal Code and so discharged them. But it appeared to him that there was prima facie case against the respondents for offences under sections 379, 341, 342 and 323, Indian Penal Code and so ordered that the respondents should be tried before himself. Against the order of discharge, the State preferred a Revision Petition before the District Magistrate. The District Magistrate called for the records from the Court of the First Class Magistrate. During the pendency of the Revision Petition, the learned Magistrate acquitted the respondents of the charges under sections 379,. 341, 342 and 323, Indian Penal Code. As the records relating to the case had been called for by the District Magistrate in connection with the Revision Petition, filed by the State against the order of discharge, until the disposal of the Revision. Petition the Magistrate could not have proceeded with the case. On 16th February, 1965, the case was not posted for evidence. One of the respondents was absent. In spite of that the learned Magistrate has proceeded to acquit the accused on the basis that the prosecution was not diligent and that no stay order had been communicated. Petition the Magistrate could not have proceeded with the case. On 16th February, 1965, the case was not posted for evidence. One of the respondents was absent. In spite of that the learned Magistrate has proceeded to acquit the accused on the basis that the prosecution was not diligent and that no stay order had been communicated. In fact and by inference it is clear that when a Revision Petition was pending against the order of the learned Magistrate and the records had been called for, the learned Magistrate could not have proceeded further and therefore the order passed by the learned Magistrate is an illegal order. From the reference it is clear that the order passed by the learned Magistrate discharging the respondents of the charge under section 395, Indian Penal Code was not justified on the facts of the case. The District Magistrate himself was competent to set aside the order of discharge and direct the Magistrate to frame the charge and commit the accused to take their trial before the Sessions Court. Ira the normal course, he could have done, so, but before he could pass an order in that behalf, the State brought to the notice of the learned District Magistrate about the illegal order passed by the Magistrate acquitting the accused of the other charges. The District Magistrate, on examination of the records, came to the conclusion that the order of acquittal was illegal. In such a case the District Magistrate himself has no power to deal with the matter and the illegality is such that the interference of the High Court is necessary and therefore the proper course open to the District Magistrate was to report the matter for the orders of the High Court. That is exactly what has been done in this case. Mr. K. Jagannatha Shetty, the learned Counsel for the respondents, contended that as the State has not preferred an appeal against the order of acquittal, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed. That is exactly what has been done in this case. Mr. K. Jagannatha Shetty, the learned Counsel for the respondents, contended that as the State has not preferred an appeal against the order of acquittal, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed. According to him the State preferred a revision petition to the Court of the District Magistrate against the order of acquittal and the reference made by the District Magistrate to this Court in fact is a revision petition by the State so far as it relates to the order of acquittal and therefore clause (5) of section 439 is a bar. The mere fact that the State Government could have appealed against the order of acquittal passed by the Magistrate does not take away the powers of the District Magistrate to make a reference in respect of the order. Sub-section (5) of section 439 has no application to such a case. It is certainly competent for the District Magistrate torefer the case tothe High Court under section 438 as he is not a person capable to move the Government to file an appeal under section 417. Where the District Magistrate finds on examining the records of a proceeding that the order is contrary to law or the sentence is too severe or inadequate, he has power to report the matter to the High Court. He cannot, however, exercise such a. power, if he has himself jurisdiction to rectify such error or illegality or to pass suitable orders in respect of the matter. Thus, where he finds that an order of discharge is improper he should pass suitable orders under section 436 or section 437 and not to make any report under section 438. In case, however, where the District Magistrate finds that he himself has no power to deal with the matter and the illegality or the irregularity is such that the interference of the High Court is necessary, the proper course is to report the matter for orders of the High Court. The reference made by the District Magistrate cannot be construed as a Revision Petition preferred by the State. The reference made by the District Magistrate cannot be construed as a Revision Petition preferred by the State. On facts the order of discharge passed by the Magistrate cannot be sustained The order of acquittal is an illegal order and therefore I accept the reference and direct the Magistrate to frame charges against the respondents for offences under sections 395, 379, 341, 342 and 323, Indian Penal Code, and commit them to take their trial in the Court of the Sessions Judge at Raichur. S.V.S. ----- Reference accepted.