NARESH PRASAD MITTAL Vs. MAHAVIR SINGH

JUDGEMENT

(1.) This is an appeal against 311 order of acquittal passed by the Additional District Magistrate of Bijnor dated 29-9-1958. The facts which have led to this order may be shortly stated as follows. Appellant Naresh Prasad filed a complaint against the respondent Mahabir Prasad under Sections 842 and 166 I. P. C. which was pending before a Magistrate. The complainant made a further application claiming that the facts disclosed an offence under Section 320 I. P. C, and that the procedure for an enquiry should be followed in the case, as it was a case triable by the Court of Session. This application was made on 23-9-1958. It was rejected by the learned Magistrate. A revision against this order was filed before the Sessions Judge. The Sessions Judge while admitting the revision passed the following order, "Stay pending revision" on 26-9-1958.

(2.) After this order had been passed by the leaped Sessions Judge, the case came up for hearing before the Magistrate on 29-9-1958. When the case was called up, learned counsel appearing for the complainant appeared before the court; in the circumstances it must be believed that he informed the learned Magistrate of the fact that further proceedings in the case had been stayed by the Session Judge. The Magistrate, however, passed the order which is now under appeal. In this order he has stated that the complainant was not present. His counsel, however, came but since the complainant was not present, the complaint was dismissed and the accused was acquitted. It seems that the learned counsel finding the Magistrate not accepting his oral statement, made an application in writing and presented it to the court the same day. Upon this application, the Magistrate passed the following order, "Received after dismissal of the complaint. File." The order passed by the Sessions Judge also reached the Court the same day and it has been noted upon a copy of this order, which is on file, that it was received at 4.25 P.M.

(3.) Upon these facts, the contention of the learned counsel for the appellant is that further proceedings in the case having been stayed by the Sessions Judge, the complainant was not bound to appear before the Magistrate, and the Magistrate having been informed by his counsel that further proceedings could be stayed, the Magistrate was wrong in dismissing the complaint and acquitting the accused.