STATE Vs. MEHTAR

JUDGEMENT

(1.) THIS is a reference by the Additional Sessions Judge, Balaghat, under Section 438, Criminal Procedure Code, recommending that the order dated 30 -11 -1959 passed by the Magistrate, 3rd Class, Balaghat, in Criminal Case No. 15 of 1959 be set aside and the accused be discharged.

(2.) THE reference has come to be made in the following circumstances. The non -applicant No. 2 (before me) had filed a complaint under Section 352, Indian Penal Code, against the non -applicant No.1 before me) in the Court of Magistrate 3rd Class, Balaghat, and non -applicant No. 1 was convicted: But on appeal filed by the non -applicant accused the order of conviction was set aside on the ground that the case being triable by Nyaya Panchayat it could not be tried by the Magistrate. The complaint was, therefore, directed to be returned for presentation to proper Court. Thereupon the complainant -non -applicant filed that complaint before the Nyaya Panchayt at Lamta. But as the offence involved had been committed more than one year prior to the date when the complaint was represented, the Nyaya Panchayat dismissed the complaint as barred by limitation as provided in Section 73 of the C.P. and Berar Panchayats Act, 1946. On the dismissal of the complaint by the Nyaya Panchayat the complainant filed a fresh complaint in the Court of the Magistrate, 3rd Class at Balaghat. The non -applicant -accused raised a preliminary objection that the complaint having been dismissed as barred by limitation by the Nyaya Panchayat no fresh complaint could be entertained now by the Magistrate; and in any case the complaint before the Magistrate would also be governed by the same period of limitation prescribed in Section 73 of the Nyaya Panchayats Act and on that ground too the complaint could not be entertained. This objection was however over -ruled by the Magistrate on the ground that since his predecessor had already taken congnizance no such objection could now be entertained. Against this order a revision petition was filed in the Sessions Court at Balaghat which agreeing with the contentions raised before it has made this reference and the recommendations.

(3.) THEN there is another impediment in the entertainment of that complaint. When the Nyaya Panchayat had dismissed the complaint as barred by limitation the complainant should have gone up in revision and should have urged that under the circumstances of the case he was entitled to claim exclusion of the period spent by him in prosecuting his complaint in the ordinary criminal Court. That not having been done by him the dismissal of the complaint became final and conclusive. The accused could not, therefore, be prosecuted a fresh on a fresh complaint. On this ground also, therefore, the cognizance taken by the Magistrate was illegal and liable to be quashed. It is not understood what difference it made whether the cognizance was taken by the present Magistrate or by his predecessor. The present Magistrate could set right the wrong done by his predecessor as it affected the very jurisdiction to entertain the complaint.