PUSHPA WANTI Vs. MAJESAR DASS

JUDGEMENT

(1.) THIS criminal appeal is directed against the judgment of the Judicial Magistrate, First Class, Ballabgarh, acquitting Majesar Dass for the offences under Sections 323 and 504 of the Indian Penal Code, on the short ground that the complainant Smt. Pushpawanti was found absent on one of the dates fixed for the witnesses to be cross -examined under Section 258 of the then Code of Criminal Procedure. The facts giving rise to the present appeal may now briefly be stated.

(2.) A complaint was filed by Smt. Pushpawanti, alleging that her husband Sham Lai was tenant in the house of the accused and the latter wanted him to vacate that house. Accordingly on May 3, 1971, the accused Majesar Dass came and finding the lady alone in the house, hurled abuses upon her and also gave a beating to her with a stick. The incident was witnessed by Moti Singh, and a few others. In the complaint case, on the first date the complainant gave her statement and the Magistrate having found a prima facie case against the accused, summoned him for the two offences. Under Section 252 of the then Code the complainant produced her witnesses in support of the prosecution. It appears that some cross -examination was also conducted on behalf of the accused. However, under Section 254 of the Code a charge was framed and under Section 255 of Code of Criminal Procedure the plea of the accused was recorded. He pleaded not guilty of the charge. Thereafter, the Magistrate came to the stage of Section 256 Code of Criminal Procedure which runs as follows:

(3.) IN this connection, the learned Magistrate referred to Section 257 Code of Criminal Procedure but we wish to make it clear at this stage that the said section was only applicable after the defence was entered upon by the accused. That stage had not yet arrived and the only relevant section was 256 Code of Criminal Procedure and under that section obviously it was the duty cast upon the Magistrate to have summoned the witnesses which he never did. The complainant cannot be made to suffer on that account.