LAWS(KAR)-1973-3-7

STATE OF MYSORE Vs. AKKAMMA

Decided On March 27, 1973
STATE OF MYSORE Appellant
V/S
AKKAMMA Respondents

JUDGEMENT

(1.) This reference under S. 438 of Crl.P.C. is by the Sessions Judge, Dharwar. By an order made in Criminal Revision Petition No. 56/72, he has recommended to this court that an order made by the J.M.F.C., Dharwar in Misc. Application No, 83 72 be quashed. The said application had been made by the Complainant in C.C. No. 1571/71 requesting for the restoration of the complaint after setting aside the order of dismissal for default and acquitting the accused.

(2.) The complaint was one under S. 323 I.P.C. and was triable by following the procedure prescribed under Chapter 20 of Cr.P.C. relating to the trial of summons cases. It would appear that on 18-1-1972, when the case was called on for hearing, the complainant wes absent. The learned Magistrate thereupon kept by the file and called the case later at about 1-20 P.M. Finding that the complainant still absent, he made an order acquitting the accused. Nearly a month thereafter on 19-2-72 the complainant presented the Misc. Application No. 83/72 requesting for the revival of the complaint. In the said application he tried to show cause for his absence on the previous date of hearing. The learned Magistrate after hearing both the parties restored the complaint, after setting aside the order of acquittal. Aggrieved by this order the accused preferred a Crl R.A. No. 56/72 before the learned Sessions Judge. Dharwar. The learned Judge came to the conclusion that the order of the learned Magistrate was clearly without jurisdiction, in that he had no power to set aside the order of acquittal. He thereupon made the present reference to this court It is clear from the record that the order dismissing the complaint and acquitting the accused had been made pursuant to the provisions of S.247 Cr.P.C. occurring in Chapter 20 thereof, which deals with the procedure to be followed by the Magistrate in trial of summons cases. That the learned Magistrate had no such power would be clear from the enunciation of this court in Range Setty v Kunna Setty & another, 1960 Mys.L.J. 1034, the passage reads thus:-

(3.) In the light of the above enunciation, the reference made by the learned Sessions Judge must be accepted. The order made by the J.M.F.C., Dharwar, in Misc. Appl. No. 83/72, is hereby quashed. It follows therefore that the earlier order of acquittal made in C.C. No. 1571 of 1971 staands.