SUDERSHAN PRASAD JAM Vs. NAME CHANDRA JAM

JUDGEMENT

(1.) The applicants have come forward with a prayer that the order of the Magistrate summoning the applicants under Sections 447, 427, 147 and 380. Indian Panel Code, may be set aside and the complaint as well as the Criminal case No. 1308 of 1982 may be quashed. It is urged that the earlier order of the Magistrate dated 19.7.1982 on earlier complaint discharging the accused persons amounted to an acquittal, so a subsequent complaint does not lie. It was, further submitted that discharge in a warrant case the concerned case being a warrant case, amounted to an acquittal. Reliance in support of such contention was placed upon the pronouncement in the case of Smt. Kitabun and others v. State of U.P.1 That is a pronouncement of a Single Judge, namely, Honble N.N. Sharma, J. with greatest respect to the learned brother Judge, I may mention that the following pronouncements were not noticed in that case nor considered: (i) State v. Bansu2 (ii) Laxami Narain v. Abdul Karim3 (iii) Ratilal Bhanji v. State of Maharashtra4 (iv) Swaloop Singh v. Emperor5

(2.) In all these cases discharge in a warrant case has not been treated as acquittal. In the case of Swaroop Singh (Supra) it was held that fresh complaint is not barred. In the case of Laxmi Narain v. Abdul Karim (supra) also it was held that the discharge did not amount to acquittal and fresh complaint is maintainable. In the case of State v. Bansu (supra) it was held that in a warrant case discharge does not amount to acquittal. In this case rather charge was also framed, but the case was later transferred to another court and it was held that the succeeding court will be deemed to have proceeded de novo and all earlier proceedings including framing of charge stood wiped off and thereafter it was further observed that subsequent discharge does not amount to acquittal in a warrant case. In the case of Ratithal Bhanji v. State of Maharastra (supra) the Supreme Court observed that the trial in a warrant case starts with framing of the charge. After such charges framed, the Magistrate call either acquit or convict, unless he decides to proceed under Sections 305 and 300 of the new Criminal Procedure Code.

(3.) As there is a Supreme Court pronouncement as well as a Division Bench case, as aforesaid, down that discharge in warrant case was not amount to acquittal, I am bound by such view and any occasion for making any reference to a larger Bench would also not arise. I therefore, held that a discharge in a warrant case before framing any charge and dismissal of complaint for want of evidence before the stage of charge does not amount to an acquittal in a warrant case in fact, the order is also very clear and the Magistrate has simply to purported to discharge the accused persons concerned under Section 245 (1), Criminal Procedure Code. The argument that it will be an acquittal under Section 248(0, Criminal Procedure Code again is against the very language of that section. The section reads that if any case under that Chapter in which a charge has been framed the Magistrate finds the accused not guilty, he shall order an acquittal. In the present case the charge was not framed. What transpired was that the applicant wanted to withdraw the complaint for want of notice under Section 448, Criminal Procedure Code for moving such complaint after fresh notice, to which the Magistrate did not accede, and then proceeded to dismiss the complaint for want of evidence. Reliance is further placed upon the case of State of U.P. v. Parsadi6. That was a case under Arms Act. It is again a single Judge pronouncement. I have already referred the Division Bench case and the case of the Supreme Court. In fact, the earlier complaint could not proceed for want of a notice and the Magistrate in this anxiety for disposal rejecting the application for withdrawal dismissed it, as no evidence was being produced. The facts of this case are also distinguishable. The inherent powers cannot be exercised to perpetuate any injustice. This application is summarily rejected.