CHANDAR DAS Vs. MALLA

JUDGEMENT

(1.) This is a reference by the learned District Magistrate, Nagaur.

(2.) On 29th March, 1946 Chandar Dass, complainant, filed a complaint against Malla and four other persons for offences under Sections 426 and 447, Indian Penal Code. The allegations were that the accused entered into his field and demolished a mud-wall, and thereby deprived the complainant of the benefit of the flow of the village water in his field during rains. The accused denied the charge. The case was tried as a summons case by the Third Class Magistrate, Didwana. Ultimately an order of acquittal was recorded on 26th October, 1950 on the complainant's absence on that day. The complainant made an application to the District Magistrate, Nagaur, on 8th December, 1950 for moving the Government to file an appeal against that order. The learned District Magistrate has made this reference on 30th April, 1951.

(3.) He has mentioned that he took charge on the 22nd April, 1951 and the time left for an appeal was insufficient. According to the learned District Magistrate all the evidence for the parties had been recorded by 14th April, 1948 and thereafter several adjournments were granted as the Court wanted to examine the Havaldar of the village as a Court witness. This Havaldar had prepared a plan under instructions of the Magistrate. The witness attended the Court more than once, but could not be examined. In the opinion of the learned District Magistrate, the complainant was not at all to blame for the delay in this case ana his single absence from the Court on 26th October, 1950 should not have been made ground for dismissal of the complaint and a quittal of the accused. While it is true that the complainant was not to blame for the delay in the disposal of the case in the trial Court, the fact remains that the trial Magistrate has passed an order which cannot be said to be illegal. Under Section 247, Criminal Procedure Code, which is found in the Chapter dealing with the trial of summons-cases, the Magistrate has been empowered to acquit the accused if on any date of heating to which the case may be adjourned the complainant does not appear, unless for some reason he thinks proper to adjourn the hearing of the case to some other day. The general rule is to acquit the accused whereas an adjournment is an exception. While there is no doubt that the High Court in the exercise of its revisional powers can reverse such an order and direct a retrial of the accused it has been laid down in numerous cases that "except in the most serious cases and in the event of grave miscarriages of justice no High Court shall interfere in revision in such matters" 'PAHALWAN SINGH v. SAHIB SINGH', AIR 1921 All 76. In a recent case of the Allahabad High Court 'MANGLI PRASAD v. BUDH SEN', AIR 1949 All 264 the view taken by Stuart J. in the earlier case was upheld. It is not necessary to multiply cases.