RAJ KUMAR PAUL Vs. AMAR CHAND DAS

JUDGEMENT

(1.) THE learned Sessions Judge has made this reference under section 438 Criminal Procedure Code with a recommendation that the order of acquittal of two of the respondents namely, Narayan Das and Atindra Das dated 13 -11 -59 may be set aside and that the Magistrate may be directed to re -try the case according to law.

(2.) THE case arose out of a complaint filed by the petitioner herein before the sub -divisional Magistrate, Dharmnagar on 6 -10 -58 against the 4 respondents under sections 323 and 392 I. P. C. The Magistrate adopted warrant procedure in the trial as section 392 I. P. C. will make it a warrant case. 5 prosecution witnesses were examined and cross -examined before charge. Then he found that no case under section 392 I. P. C. was made out against any of the respondents. So he discharged all the respondent, under section 253 (1) Criminal Procedure Code in respect of the offence under section 392 I. P. C. on 3 -7 -59. But he found that against the two respondents Narayan Das and Atindra Das, there was evidence of causing simple hurt under section 323, I. P. C. So he decided to try Narayan Das and Atindra Das under section 323 I. P. C. As however, the offence under section 323 was not punishable with imprisonment for a term exceeding one year, the Magistrate decided to shift to summons procedure under Chapter XX. He thereafter examined Narayan Das and Atindra Das under section 242 Criminal Procedure Code on 22 -8 -59 and posted the case for the evidence of the complainant and his witnesses to 13 -11 -59. On that date Narayan Das and Atindra Das as also the complainant were present. But the P. Ws. were not present. The complainant filed a petition for adjournment on the ground of the illness of the P. Ws. But the Magistrate refused to grant time as no medical certificate was filed to prove the illness and he acquitted the accused. He has not stated under what provision of law he acquitted the accused. The only provision in a summons procedure case for acquittal without the examination of the witnesses is section 247 Criminal Procedure Code So we have to take it that the acquittal was under that section. But section 247 would apply only where the complainant docs not appear. In the present case the complainant was admittedly present on 13 -11 -59.

(3.) THE learned Sessions Judge has, therefore, made this reference stating that the order of acquittal evidently passed under section 247 on the footing that it was a summons case was illegal, as the complainant was present on the date of hearing. The Sessions Judge has further pointed out that the Magistrate acted illegally in changing over to summons procedure after having started the enquiry under warrant procedure.