RADHAKISHAN BHAKAT Vs. RAMNATH BHAKAT

JUDGEMENT

(1.) THIS appeal is directed against an order of acquittal dated 7. 3. 74 passed by a learned judicial magistrate, Rampurhat, in C. R. Case No. 634 of 1973. Facts leading on to the issue of the present appeal are shortly as follows :-On 25. 11. 72, the petitioner filed a complaint under section 323 I. P. C. staling inter-alia that similar complaint filed in case No. C. R. 115 of 71 was dismissed though the complainant had applied for adjournment. The learned sub-divisional judicial magistrate called for the records of the earlier case and fixed 10. 1. 73 for hearing and order. On that day some of the accused/respondents filed an application for dismissing the petition of complaint. That application was rejected by the learned magistrate on a finding that they had no locus standi. On 2. 5. 73, the learned magistrate held that there was no bar under section 403 Cr. P. C. for entertaining the fresh complaint and summoned the accused persons under section 323 I. P. C. After appearance of the accused, the case was transferred to the file of another judicial magistrate for disposal. Before the transferee court, an application was filed on behalf of the accused challenging the maintainability of the present complaint. After hearing both the parties, the learned magistrate by the impugned order dated 7. 3. 74, acquitted the accused. Thereafter, the complainant filed this appeal after obtaining special leave of the court,

(2.) MR. Samarendra Kumar Dutt, learned advocate with Mr. Surjit Kumar laik, appearing for the appellant contended that the impugned order of the learned judicial magistrate was illegal and without jurisdiction. His first submission was that in the earlier case, the learned magistrate acted without jurisdiction in acquitting the accused persons under section 247 Cr. P. C. 1898 inasmuch as the complainant was present in court. Accordingly, such an order without jurisdiction was a nullity and as such the learned sub-divisional judicial magistrate was perfectly justified in ignoring such a null and void order and entertaining a fresh complaint. His second contention was that at the time of issue of the process after taking cognizance the learned sub-divisional judicial magistrate did take into consideration the fact of acquittal in the earlier case and came to a finding that section 403 Cr. P. C. was not a bar to the present complaint. Upon such finding, he ordered issue of the process under section 323 I. P. C, against the accused persons. Mr. Dutta submitted that the transferee court sat in judgement over such finding of the learned sub-divisional judicial magistrate when the found that section 403 Cr. P. C. was a bar to the present proceeding. The transferee court as per contention of Mr. Dutta have had no such power of revision of the previous order and is such the impugned order passed by him is also without jurisdiction.

(3.) MRS. Jyotirmoyee Nag, learned advocate appearing for the respondents contended that the fact of an order of acquittal under section 247 Cr. P. C. passed rightly or wrongly had the same effect as that of an order of acquittal after trial and that as such it was not within the competence of the learned magistrate (latter sub-divisional judicial magistrate) to ignore such order of acquittal and to issue process under section 323 I. P. C. against the respondents. Mrs. Nag submitted that the remedy against such order of acquittal even it unjust or wrong lay in moving the higher court for setting aside such order. It was also contended by mrs. Nag that the transferee magistrate was justified in dismissing the second petition of complaint inasmuch as the continuance of such proceeding would have amounted to an abuse of the process.