MAHADEO Vs. VASANTA NAMDEO KOTBALE

JUDGEMENT

(1.) - A complaint was filed by the present appellant before the Judicial Magistrate, First Class, Umrer on 2. 7. 1984. Verification came to be recorded on 5. 10. 1984. The learned Magistrate asked the Police to enquire and report. It appears that the report was never received. The Magistrate then called upon the complainant to examine his witnesses before issuing the process. The evidence was recorded on 25. 12. 1984. On 4. 1. 1985 the Magistrate registered the complaint and issued a process under sections 427 and 352 of the Indian Penal Code against the accused. The accused put in their appearance for the first time on 4. 2. 1985 and furnished the bails. On 4. 7. 1985 the case was adjourned for explaining the particular to the accused. It was again adjourned to 2. 5. 1986 and then to 1. 10. 1986 for the same purpose i. e. explaining the particulars to the accused. When the case was called on 1. 10. 1986 the complainant and his counsel remained absent. The accused also remained absent. However, the counsel for the accused filed an application for exemption which was granted by the trial Court. The trial court then passed the order below Exhibit-I dismissing the complaint for want of prosecution and further directing the discharge of the accused.

(2.) THIS order was challenged before the Sessions Judge, Nagpur in Criminal Revision No. 1979 of 1986. The learned Sessions Judge by his order dated 16. 4. 1987 held that it was after all a summons case and though the Magistrate directed discharge of the accused under section 256 that discharge virtually amounted to acquittal and, therefore, no revision lay against the order of acquittal as the remedy of appeal was provided. The revision thus came to be dismissed on 16. 4. 87. It is against this order of the learned Sessions Judge, Nagpur that the present criminal appeal has been filed.

(3.) WHEN this appeal came up for hearing before me there was no complaint that the appeal was barred by limitation. What was urged before me by the learned counsel for the appellant is that it is only on 4. 8. 1985 that the Magistrate took cognizance of the case and issued a process. In pursuance of this summons the accused put in their appearance on 4. 2. 1985 and furnished the bail bonds. Then the case was adjourned thrice i. e. on 4. 1. 1985, 4. 2. 1985 and 2. 5. 1986 for explaining the particulars to the accused. It was again adjourned to 1. 10. 1986 for the same purpose, namely, explaining the particulars to the accused. Explaining the particulars to the accused is the stage before commencement of the trial in summons case. Unless particulars are explained and plea of the accused is recorded, there cannot be any hearing of the matter. I am specifically pointing out this because what was sought to be urged was that the case was not fixed for hearing on 1. 10. 1986 when the Magistrate dismissed the complaint and discharged the accused. As the record stands, the case was adjourned to 1. 10. 1986 only for recording the particulars of the offence to the accused and nothing also. It was definitely not for hearing.