KODU Vs. BANMALI

JUDGEMENT

(1.) THIS is an appeal against acquittal on special leave granted under Section 417 (3), Criminal Procedure Code. The appellant filed a complaint under Sections 497/498/109, Penal Code, against the respondent in the Court of the Magistrate first Class, Katni. It is alleged in the complaint that Mst. Itiya is the married wife of the complainant. Banmali, accused No. 1, has kept Mst. Itiya as his wife and he is committing adultery and is liable under Section 497/ 498, Penal Code. Mst. Charki, accused No. 2, is the mother of Mst. Itiya. She connived and abetted the offence under Sections 497 and 493, Penal Code.

(2.) AFTER recording prosecution evidence, the learned trial Magistrate, on 29th september 1964, framed a charge under Section 497, Penal Code, against banmali. The accused pleaded not guilty and desired that the prosecution witnesses be recalled for further cross-examination. The learned Magistrate directed that summons be issued on payment of "talbana". The 9th November 1964 was fixed for further cross-examination, Mst. Charki was discharged. The complainant submitted that he was not bound to pay "talbana". The learned magistrate held that the word "talbana" includes both process fee and diet money; that the complainant was bound to pay diet money; and that for non-compliance with his direction for payment of "talbana", the complaint was liable to be dismissed. Accordingly, he "dismissed" the complaint under Section 204 (3), criminal Procedure Code. This appeal is from that order.

(3.) THERE can be no doubt that the learned Magistrate was clearly wrong in using the expression "dismissal of complaint". A charge had been framed. His order amounts to acquittal. This appeal is, therefore, competent.