THANGAVEL Vs. GURUVEL

JUDGEMENT

(1.) This is a petition under Section 482, Cr1. P.C., praying this court to call for records and quash the proceedings in C.C. No. 43 of 1988 on the file of the Sub-Divisional Judicial Magistrate, Gobichettipalayam. The circumstances under which this petition arises are as follows: The respondent filed a complaint against the accused respondent filed a complaint against the accused before police on 3-7-1985 alleging commission of offences by the accused under Section 147,341 and 354, I.P.C. and Section 7 (1) (d) of the Protection of Civil Rights Act. The police after investigation filed a report under Section 173, Cr. I.P.C., that the matter amounted to mistake of fact. There upon the respondent filed a complaint before magistrate on 18-6-1986. The magistrate referred the matter again for investigation and the police reported again that the case was a false one. Upon receipt of such report, the magistrate posted the case for enquiry on 5-12-1986. On that date, the respondent complainant was absent and the petition was dismissed. On 17-12-1986 the complainant filed a petition, namely, C.M.P. No. 4103 of 1986 praying the magistrate to recall his order dated 5-12-1986, which petition was allowed by the magistrate who ordered enquiry to be taken up on 2c2-1987.

(2.) The present petition is directed against the order of the magistrate dated 17-12-1986 recalling his earlier order dated 5-12-1980. The learned counsel for the petitioner would state that the magistrate has no power to recall the order passed on the private complaint and his order should, therefore, be set aside and the proceedings quashed. In this connection, he placed before me two decisions, one of the Supreme Court in Bindeshwari Prasad v. Kali Singh1 and the other of the Calcutta High Court in R.K. Gupta v. Sankar Mukherkje2

(3.) The respondent in this petition is found to be absent and no representation is made on his behalf. As per Section 256, Cr. P.C. if the summons has been issued on complaint and if on the day appointed for the appearance of the accused, the complainant does not appear, the magistrate shall acquit the accused unless for some reason he thinks it proper to adjourn the hearing of the case to some other day or dispense with the attendance of the complainant if he is represented by a pleader and the magistrate is of the opinion that the personal attendance of the complainant is not necessary. In this case, the case was not adjourned nor the personal attendance of the complainant was dispensed with. That means the accused have been acquitted as per Section 256, Cr. P.C. Once the accused have been acquitted, there is no possibility of reviving the proceedings as held by the Supreme Court, in the decision quoted supra. Therefore, this petition is allowed. The proceedings are quashed.