MADHU SUDHAN PAUL Vs. SUNIL CHANDRA DEB

JUDGEMENT

(1.) IN this revision what the petitioner wants is that the order of the First Class Magistrate, acquitting the respondents under Section 247 Cr.P.C. should be set aside and that the Magistrate should be directed to get on with the trial of the case.

(2.) THIS case has had a very chequered] career. The occurrence took place on 13 -4 -54 and the respondents and some others were said to have committed house trespass and assaulted the petitioner and his son. The F.I.R. was lodged on 15 -5 -54 and in the trial which followed the Magistrate convicted the respondents under Sections 323 and 448 I.P.C. There was an appeal to the Sessions Court and the appellate Court 'remanded the case for a retrial'. The appellate Court did not consider the oral evidence at all. It felt suspicious regarding the delay in the filing of the F.I.R. and was not satisfied with the explanation of the petitioner that the I.O. refused to accept the F.I.R. earlier without a medical certificate. The I.O. was not examined in the case and the appellate Court felt that the I.O. should be examined. Again, the appellate Court said that the examination of the accused under Section 342 was unsatisfactory. But it did not say in the judgment how or why it was unsatisfactory. Any way, it remanded the case for retrial. As the defects pointed out were non -examination of the I.O. and the unsatisfactory examination or the accused under Section 342, the retrial could have been confined by the appellate Court to that portion of the trial. Evidently, the appellate Court did not bestow much thought on it and sent back the whole case for retrial on 6 -3 -57.

(3.) WHAT the learned Magistrate evidently did not understand is that Section 247 Cr.P.C. did not apply to the case at all. He has stated in his order that the provisions of Section 247 Cr.P.C. were truly attracted to the case. Section 247 applies only to complaint case and not to cases charge -sheeted by the police. In such cases, it is Section 249 which would apply, and the learned Magistrate was therefore wrong in having dealt with the case under Section 247 Cr.P.C. Ha was wrong to have dismissed the case for default of the complainant and to have acquitted the accused. At best his order can be treated as only one under Section 249 of stoppage of the proceedings without pronouncing any judgment either of acquittal or conviction. The learned Magistrate has certainly committed an error in passing the order under Section 247 and not under Section 249, His order will therefore be treated to be one under Section 249 and the respondents will not be deemed to have been acquitted.