RAMPAL Vs. MANGIA

JUDGEMENT

(1.) Rampal lodged a complaint against Mangia and Lakkha of offences under Sections 447 and 504 P. C. in the Court of the First Magistrate, Sawai Madhopur, on the 19th of October, 1948, alleging that in his absence on the 14th October, 1948, the accused entered his premises and after having demolished his house took possession of his land. After issuing process for the attendance of the accused, and after holding an enquiry, the learned Magistrate, on the 15th June, 1949, framed charges against both the accused under Sections 447 and 504 P. C., and fixed the 27th of July, 1949, for further proceedings in the case. The accused had asked for re-cross-examination of the prosecution witnesses and the Magistrate therefore directed the complainant either to produce his witnesses himself or to apply before a date fixed by the Court for issue of summons for his witnesses. The complainant paid the process fee, and applied for the issue of processes for summoning his witnesses, and on the date fixed for the hearing, the complainant and his witnesses did not turn up, and the accused attended the Court. The Magistrate thereupon held that as the statements of the prosecution witness had not been subjected to re-crossexamination which was demanded by the accused, that part of the evidence could not be read against the accused to secure their convictions and taking this view of the case, the learned Magistrate acquitted the accused. The complainant filed a revision in the Court of the Assistant Sessions Judge, Gangapur, against the order of acquittal passed by the Magistrate, which was dismissed on the 10th October, 1949. The complainant has now filed this revision.

(2.) The learned counsel for the complainant has argued that the order of the Magistrate, which purported to be under Section 258 of the Cri. procedure, was not according to law. He further urged that after the framing of the charges in the trial of a warrant case, it was the duty of the Court to re-summon the prosecution witnesses, and if the prosecution witnesses after having been duly served failed to attend the Court, it was for the Magistrate to compel their attendance and it was not proper for the Magistrate to have acquitted the accused under these circumstances. He has put reliance on the rulings of cases reported in 'HAR KISHAN v. EMPEROR', AIR (24) 1937, All. 127; SAGHIR UDDIN V. MT. MUNNI', AIR (36) 1949 All 428; 'VARADARAJULU v. JANAKIRAMA', AIR (29) 1942 Mad 552(1); 'EMPEROR v. NAZO', AIR (30) 1943 Sind 148 and 'RAM BAKSH v. JAI-RAM DAS', AIR (12) 1925 Oudh 306(1).

(3.) The counsel for the accused has cited the case reported in 'SADEK MAHAMMAD v. JYO-TISH CHANDRA', AIR (35) 1948 Cal., 83, and has argued that as the order of the learned Magistrate was on the merits of the case, and it was not an order made in default of the attendance of the complainant, it was according to law and this Court should not now revise it.