STATE Vs. THOMMI

JUDGEMENT

(1.) This is a State appeal against an order of acquittal in a summons case. The case was one charged by the Sub-Inspector, Pulinkunnu. The prosecution did not adduce any evidence and the learned Magistrate acquitted the accused.

(2.) The acquittal in this case was under S.247 of the Code of Criminal Procedure which enables the Magistrate to acquit the accused on the ground that the complainant does not appear on the date of hearing. This section applies only when the summons is issued on a complaint. The definition of complaint is such as to exclude a report of a police officer. The acquittal under S.247 is not proper. However it was open for the Magistrate to acquit the accused under S.245 of the Code of Criminal Procedure as no evidence had been produced. It was stated in the charge sheet that all the witnesses would be produced on the date of hearing. No witness was produced on 7-1-1959 and there was no report that more time was required to produce witnesses or that summons should be issued to the witnesses, and so the Magistrate could have acquitted the accused under S.245.

(3.) In the circumstances of the case, I do not consider it necessary to order a re-trial. The alleged incident which has given rise to the case was on 22-11-1958 and the same was reported to the police only on 29-11-1958. The aggrieved person did not cause to appear on 7-1-1959. I do not feel justified in ordering a re-trial in the case as no miscarriage of justice appears to have taken place.