SUNDER MANDAL Vs. DHANUKHI YADAV

JUDGEMENT

(1.) This appeal has been preferred under the provision of Section 417 (3) of the Criminal Procedure Code. Sunder Man-dal, the present appellant, brought a case against Dhanukhi Yadav, his brother Khanro Yadav and Dhanukhi's son Sakal Yadav. It is said that on 6-9-63 at 5.30 p.m. Sakal was seen grazing his 12 heads of cattle in the rahar field of Sundar, situate in village Loncha Patnam, Police station Moffasil Monghyr district Monghyr, Sundar came there and drove away the cattle towards the pound. Sakal then called his father upon which Dhanukhi and his brother Khanro came there. They rescued the cattle though Sundar protested and said that she was taking the cattle to the pound and they should not rescue the same. Then on the order of Dhanukhi, Sakal gave lathi blows to Sundar and Khanro gave slaps to him. On the hulla raised by Sunder, the other prosecution witnesses came there and saw the assault and the rescue of the cattle by Sakal, Dhanukhi and Khanro. Injured Sakal was taken to Monghyr sadar hospital where his fardbeyan was recorded by Assistant Sub-Inspector Sarjug Prasad Verma of town police station. Dr. Ramji Singh (P. W. 5) of Monghyr hospital examined Sakal on 7-9-63 at 10.25 a.m. and found two injuries on his person, namely, a diffused swelling bruised covering lower one third of left leg, ankle and foot. X'ray showed fracture of left leg fibula in the vital lower parts and one bruise 1" x 1/2" on front right leg. According to this doctor, injury No. 1 was grievous and injury No. 2 was simple caused by a lathi within 24 hours, Dr Jitendra Mohan Gupta (P. W. 7), a private medical practitioner had X rayed the leg of Sundar on 11-9-63 and found that there was a fracture of lower end of left fibula. His report is Ext. 2. When this medical report was received by the police, a first information report was drawn up on 22-9-63 at 6 p.m. and the police started investigation and ultimately submitted charge sheet on 7-11-63.

(2.) Meanwhile, Sundar filed a complaint petition on 17-9-63 before the Subdivisional Officer, Sadar, Monghyr who took cognizance on 19-9-63 under Section 323 of the Penal Code and Section 24 of the Cattle Trespass Act Both the complaint case and the police case were transferred to file of the Honorary Magistrate first class, Monghyr. They were amalgamated and tried together. In that court charges were framed under sections 325/34 and 426 of the Penal Code and Section 24 of the Cattle Trespass Act. The learned Honorary, Judicial Magistrate acquitted all these three respondents. Hence this appeal by the complainant. Sundar Mandal, to this Court.

(3.) Learned counsel appearing for the respondents raised a preliminary objection. His contention is that this appeal is not maintainable under Section 417 (3) Cr. PC. because the case had proceeded on the charge sheet submitted by the police and the procedure laid down under Section 251-A of the Criminal Procedure Code was adopted. He further pointed out that the order sheet of the court of the learned Honorary Judicial Magistrate clearly indicated that the Assis- tant Public Prosecutor was in charge of this case and he was taking steps to produce the witnesses etc. The last order in this order sheet is dated 19-5-65 and the learned Honorary Judicial Magistrate has written that all accused are acq uitted under Section 251 (11) Cr P. C. It was further contended that the appellant also filed a revision petition before the Sessions Judge, though the same was summarily dismissed on 23-6-65. He. having availed that opportunity, now cannot back out from that position. He relied in this connection on a Bench decision of this Court in the case of Har-bans Singh v. Daroga Singh, AIR 1962 Pat 27. But, the facts of that case are some what different. In that case Harbans Singh had lodged a first information report on 12th January, 1956, at Phulwari police station concerning an occurrence that had taken place on the 11th January, 1956. A copy of the first information report was forwarded to the Subdivisional Officer and he started G. R case No. 98 of 1956. On 10th February, 1956, while the police investigation was going on, Harbans Singh filed a protest petition before the Subdivisional Officer who treated it as a complaint and examined him on solemn affirmation on the same date. Case No. 43/C/56 was started on its basis. The sub-divisional magistrate ordered the matter to be put up with connected case record on the 14th February, 1956. As the record was not available readily, the learned magistrate ordered on 6th June, 1956, that the case be transferred to a magistrate. The magistrate proceeded to hold the commitment enquiry in accordance with the provisions of Section 207-A of Chapter XVIII Cr. P. C, and committed the accused persons. A trial was held by the first Additional Sessions Judge of Patna who acquitted the accused persons. In the meantime, Case No. 43/C/56 went on being postponed from date to date until the 6th June, 1956, on which date the Sub-divisional Magistrate transferred the police case to the magistrate. He gave the order as follows: "Complainant is absent. Charge sheet Under Section 148/149/302, I. P. C. submitted in the police case. Amalgamated with G, R. No. 98/56 Pulwari P. S-case No. 4 (1) 56." In such circumstances, this Court held that the case could not be said to have been instituted upon a complaint within the meaning of Sub-section (3) of Section 417 Cr. P. C. The effect of the order of amalgamation therefore, was that the complaint case was merged with the police case. In other words, the complaint case lost its identity and separate existence as it merged with the police case which alone retained its identity.