CHAND MIA Vs. KHAYERNESSA BIBI

JUDGEMENT

(1.) THE petitioner was convicted by the first class Magistrate Udaipur, under Sub -section 323/342, I.P.C. and sentenced to undergo six months R.I. under each section, the sentences to run concurrently. In appeal the convictions were confirmed but the sentences were reduced to two months R.I. under each count. Now the petitioner has come up in revision.

(2.) THE case against the petitioner was that on 5 -7 -59, he assaulted one Kharenessa (P. W. 1) of his village with his fist and caused simple injuries to her and then tied her hinds and feet with a rope and threw her into a paddy field from where she was subsequently rescued by her brother (P. W. 3). On these allegations, the petitioner was charged under Section 323/342,1. P. C. The defence of the petitioner was that on the date of the occurrence two goats of P. W. 2 had strayed into his field and damaged his crops and when he caught the goats and was taking them to be impounded, P. W. 1 .caught hold of the none with which the goats were tied and so he pushed her with the result that she fell down in the field. He denied causing injuries or tying her hands and feet with rope. Both the lower Courts were however satisfied with the evidence of the 5 P. Ws. who were examined and of the Court witness the Doctor who deposed about the injuries that the petitioner accused the injuries and tied her hands and feet with rope and left her in the field. I see no reason to interfere with the said concurrent findings of the lower Courts on this point. The evidence against the petitioner was over -whelming and the lower Courts have come to the correct conclusion (3) But it was argued for the petitioner the his prosecution was barred under Section 403 Cri. P. C. It would appear that a complaint regarding this occurrence was first filed before the S.D.M. on 9 -7 -59 by P. W. 3, the brother C.P.W. 1 and it was registered as Criminal Case No. 291 of 1959. The S.D.M. examined the complainant under Section 200 and issued nonbailable warrant of arrest against the petitioner to take trial under Sections 354/342/323, I.P.C. As it offence under Section 354 was triable as a warrant case, warrant procedure was adopted in the case and it stood posted to 7 -9 -59. On that date, the complainant did not appear while the petitioner was present and the lawyer of the complainant informed the Magistrate that he had no instructions. Thereupon the Magistrate passed the order that the complaint appeared to be groundless and there was no need to drag on the case further causing unnecessary harassment to the accused and hence the case was dismissed and the accused discharged under Section 253, Cri. P. C. Actually, there was no warrant for the Magistrate's remarks that the complaint was groundless, as no evidence in the case had been taken before him and as he had summoned the accused under Section 204, Cri. P. C. after being satisfied that there were grounds for proceeding. Perhaps, the Magistrate acted under Section 253(2), Cri. P. C. instead of under Section 259, Cri. P. C. because the offence under Section 354, I.P.C. was a nonbailable one and a cognizable one and hence the accused could not toe discharged under Section 259, Cri. P. C. The very next day after the discharge of the accused, P. W. 1 filed the present complaint on the same facts under Section 323/342, I.P.C. and the Magistrate entertained the complaint and it is in that case that the petitioner was convicted and sentenced as stated above.