WAHENGBAM TOMCHOU SINGH Vs. CHINGAKHAM AMUSNA SINGH

JUDGEMENT

(1.) THE learned Sessions Judge has made this reference to quash the order of the First Class Magistrate, Manipur, Sri B, Ahmad, reviving the Criminal Case No. 17 of 1959 after its dismissal under Section 259 Cr. P.C.

(2.) THE short facts are as follows: On. 17 -1 -1959, the respondent filed a complaint under Section 430 I.P.C. against the petitioners and after Police Report and after summoning the petitioners the case was posted to 10 -8 -1959. On that date the complainant was absent and the Magistrate passed the order that the accused be discharged under Section 259 Cr. P.C. Shortly hereafter, the respondent appeared in Court and filed a petition stating that he was present in the Court compound, but that he did not hear the case being called out and that he heard only just then that the case had been struck off because of his absence. He, therefore, requested that the complaint may be restored. Thereupon the Magistrate passed another order on the same date that the explanation given by the complainant for his non -appearance appeared quite possible and was accepted and that the dismissal order was therefore set aside and the case restored to file and he ordered issue of summons to the parties.

(3.) IT may be mentioned here that it was a warrant case, that no charges had yet been framed and even the preliminary enquiry had not commenced and the dismissal of the complaint and the discharge of the accused by the Magistrate was not on the merits of the case, but merely on the ground of the absence of the complainant. The order of the Magistrate is not therefore a judgment within the meaning of Section 366 Cr. P.C. and therefore Section 369 Cr. P.C. providing that the Court was not to alter its judgment will not apply to this case. The question for decision is whether a Magistrate was competent to revive a warrant case triable under Chapter XXI; Cr. p. C. in which he had, discharged the accused persons under, Section 259 Cr. P.C.