SUBAL CHANDRA TARAFDAR Vs. NARAYAN CHANDRA SARMA

JUDGEMENT

(1.) THIS appeal by the complainant under section 417 (3) of the Code of Criminal Procedure is directed against an order of acquittal passed by Mr. B. D. Banerjee, magistrate; First Class, Barasat, 24- Parganas in case No. C 180 of 1967. T 257 of 1967

(2.) THE facts shortly are as follows : on a complaint filed by the appellant against the accused respondents that the accused respondents demolished their hut on 23. 3. 67 causing loss to the extent of Rs. 400/- the respondents were summoned under section 421 of the undian Penal Code. The learned Magistrate framed a charge against all the respondents under section 427 of the indian Penal Code and thereafter fixed a date for appearance of the prosecution witnesses. After several adjournments the case was fixed on 16. 8. 72 for cross examination of the prosecution witnesses when the complainant applied for an adjournment with a medical certificate. The learned Magistrate rejected the prayer holding that the conduct of the complainant was far from satisfactory and the case was an old one. As no prosecution witnesses were produced for cross-examination the learned magistrate thought that their evidence was of no value and found all the three accused persons not guilty of the charge end acquitted them under section 258 (2) of the Code of Criminal Procedure. Hence this appeal with special leave.

(3.) MR. Sudhir Ranjan Khastagir, along with Mr. Jahar Lal Roy, learned advocates appeared for the appellant and chanllenged the order of the learn ed Magistrate as erroneous and relied on two decisions of the Division Bench of this Court. Mr. Khastagir contend ed that after the learned Magistrate framed a charge it was the duty of the learned Magistrate to proceed under section 256 of the Code of Criminal Procedure and in ease the accused persons wanted to cross-examine the witnesses he should have taken steps to secure their attendance. But before doing so the court was not entitled to acquit the accused.