KHAGENDRA NAIK Vs. NILA BHOI AND 2 ORS.

JUDGEMENT

(1.) THIS is an appeal against an order of acquittal passed by the learned Magistrate 1st Class, Bhadrak, in Case No. C. 89 -I/T. 171/T. 198/T. 213 of 1958 whereby the learned Magistrate dismissed the complaint case under Section 247, Code of Criminal Procedure.

(2.) THE relevant facts shortly stated are these: On February 22nd, 1958 the Appellant -complainant filed a complaint before the Sub -Divisional Magistrate, Bhadrak, against the accused Respondents on charges under Sections 323 and 307 Indian Penal Code. On March 17th, 1958 the said complaint case was transferred to a Magistrate 3rd class. On December 6, 1958 the complaint was examined before the learned Magistrate as also three witnesses for the prosecution. On January 28, 1959 the complainant -Appellant filed another complaint petition before the learned Sub -Divisional Magistrate pray -Jug for alteration of the charge against the accused -Respondents to one under Section 325 Indian Penal Code instead of under Section 323 Indian Penal Code. On February 6, 1959 the complaint case was transferred to another Magistrate for trial. The order -sheet shows that on May 23, 1959, the date on which it was directed to be put up the accused persons were present but the complainant and his witness were absent. The learned. Magistrate dismissed the case under Section 247 Code of Criminal Procedure as aforesaid. Hence this appeal.

(3.) A preliminary point was taken by Mr. K. De, learned Counsel appearing for the accused Respondents, that this appeal was barred by limitation. The dates show that the order under appeal was made on May 23, 1959 and the appeal was filed just two months thereafter on July 23, 1959. It appears that the Appellant made an application for grant of certified copy of the order on July 22, 1959 which he duly received and thereafter filed the appeal. The Appellant is therefore entitled to the exclusion of the time for obtaining the certified copy of the order. The appeal was thus filed within time.