STATE Vs. BABOOTAL

JUDGEMENT

(1.) THIS is a reference under Section 438, Criminal Procedure Code, by the Additional Sessions Judge, Jabalpur, recommending that the order dated 13 -8 -1958 of the Magistrate 2nd Class, Sehora, dismissing the complaint of Baboolal against non applicants 2 to 5 and discharging them under Section 259, Criminal Procedure Code, be set aside being illegal and incorrect.

(2.) THE reference has been made in the following circumstances.

(3.) I have purposely detailed the progress of the complaint proceedings just to show that the trying Magistrate, as has also been observed by the learned Additional Sessions Judge, had tried the case as a warrant case. Otherwise he could easily as a summons case proceed under Section 242, Criminal Procedure Code, when the representation of the accused through a lawyer was there. This intention to try the case as a warrant case is evident from his order to summon the prosecution, witnesses at first thought on 21 -3 -1958 but on second thought deciding to have the presence of the accused in person before him. That the case was being tried as a warrant case is further evident from the order of dismissal of the complaint and discharge of the accused under Section 259, Code of Criminal Procedure Nevertheless it is contended on behalf of the accused that the order of discharge has to be construed as an order of acquittal inasmuch as the trying Magistrate by adopting a wrong procedure of a warrant case, when the offences were triable as summons case, could not deprive the accused of their right of acquittal vested in them under Section 247, Criminal Procedure Code. I am in entire agreement with this submission. But at the same time valuable rights equally secured to the complainant cannot also be ignored. It is now well settled that no party should be made to suffer by any error on the part of the Court committed while administering justice.