JOGENDRA NATH BISWAS Vs. NITYANANDA HALDAR

JUDGEMENT

(1.) THIS application by the complainant under Section 439 of the Code of Criminal Procedure is for setting aside the order of acquittal passed by Shri H. R. Das, Magistrate. 1st Class, Bongaon, in case No. C/530 of 1968. The facts of the case can be stated as follows:

(2.) MR . Kundu, learned Advocate appearing for the complainant, challenged the impugned order as without jurisdiction and illegal on the ground that it did not comply with the requirement of Section 258 of Criminal Procedure Code and contended that the learned Magistrate had no jurisdiction to acquit the accused persons in the absence of the complainant after a charge was framed. Mr. Mukherjee, learned advocate appearing for the State, while found no justification for the order passed by the learned Magistrate contended that since the order was one of acquittal it was open to the petitioners to prefer an appeal against that order and a revisional application was not therefore maintainable.

(3.) IT now remains to be seen if the petitioner should have preferred an appeal against the impugned order in the instant case. In my view, it was not necessary for the petitioner to prefer an appeal in the instant case inasmuch as the order of the learned Magistrate was not an order of acquittal within the meaning of Section 258, Criminal Procedure Code. The learned Magistrate had no jurisdiction to make the order in the absence of the complainant and such an order could be corrected in revision. I need only refer to the case of Nutbehari Sarkar, cited above, which was against an order under Section 258, Criminal Procedure Code where the Rule was made absolute in similar circumstances.