SURAJ NARAIN SINGH Vs. NIRPAT SINGH

JUDGEMENT

(1.) This is a reference under Section 438, Criminal Procedure Code, recomrnending that the order of the Sub-divisional Magistrate, Muzaffarpur, dated 31-8-1959 summoning the accused persons upon a complaint of offences under Sections 323, 147 and 448 of the Penal Code be set aside.

(2.) On 20-11-1958 one Nirpat Singh filed a petition of complaint before the Subdivisional Magistrate, Muzaffarpur. The allegations in the petition of complaint are as follows. The complaint Nripat Singh had married a Nepal! girl, on account of which the accused persons, six in number, who are his gotias were enraged and therefore, ostracised him. When his mother died in the Baisakh of the same year, the complainant invited them to the usual feast, but they declined to participate in it. Instead, they started stopping egress and ingress of the complainant The latter convened a panchaiti, but the accused remained adamant and paid no heed to the Punches, rather, before the very punches they abused him and were ready to assault him. The Punches, however, intervened and took them away. This irritated them further. On 18-11-1938, the accused started digging a ditch to close his passage intended for bringing water. The complainant stopped it, whereupon the accused wanted to assault him. The complainant fled away and took shelter in his bathan (cowshed). The accused pursued him and dragged him out of the bathan and assaulted him with lathis, butt-end of the gun and fists, inflicting thereby serious injuries on his person. Some persons came at the time of the occurrence and separated them. The gun was carried by Jageshar Singh, one of the accused, who struck him with its butt-end. These allegations apparently disclose three offences under Sections 147, 323 and 448. The Magistrate examined the complainant on solemn affirmation and took cognizance of the offence under Section 323, Penal Code, and issued processes summoning the accused persons. Some of the accused persons did not appear until after warrants of arrest were issued against him. On 6-9-1958 the complainant filed a Petition to adopt the procedure for warrant cases in trial of the accused. The Magistrate allowed this prayer and directed that procedure in warrant cases would be adopted. Accordingly, the trial proceeded and after several adjournments, the case was set down for hearing on 7-7-1959. On this date the accused were present but the complainant who was present on all the previous dates fixed for hearing was absent and, therefore, the learned Magistrate directed the accused to be acquitted under Section 247 of the Criminal Procedure Code. The operative part of this order runs as follows: "The cognizance of the offence has been taken Under Section 323 I. P. C. which is triable as summons case. In the circumstances, the accused persons are acquitted Under Section 247 Cr. P. C."

(3.) Thereafter, on 11-7-59, another complaint was made on the self-same facts on which the previous complaint was made, and the Plea of the complainant was that because of his being in volved in a false criminal case at the instance on the accused, he could not attend Court on 7-7-1959 and prayed for issue of processes against the accused. He was examined on solemn affirma tion. The Magistrate called for the record of the previous complaint and passed the following order on 31-8-1959: