TEJ SINGH Vs. BIRDA

JUDGEMENT

(1.) THIS is a revision petition' by Tej Singh from an order of the First Class Magistrate No. 2, Jodhpur, dated the 6th of December, 1957, which was confirmed in revision by the Sessions Judge of Jodhpur on the 22nd of July, 1958.

(2.) BIRDHA filed a complaint in the court of the Magistrate First Class No. 2, Jodhpur on the 17th of July, 1956 under secs. 147,427 and 447 I. P. C. with the allegations that the accused persons in pursuance of their common object committed trespass on the field of the complainant named Dhaniwala in village Sani and ploughed it and broke two tankas belonging to the complainant, thereby causing a loss of the value of Rs. 300/- to him. The Magistrate recorded the statement of the complainant and four other witnesses and issued process against the accused Tej Singh and others on the 4th of August, 1956 in respect of an offence under sec. 447 only. A number of dates were fixed and finally on the 21st of August, 1957, the case was dismissed under sec. 247 Cr. P. C. on account of the complaint remaining absent. The complainant BIRDHA then filed a second complaint about four months thereafter on the 6th of December, 1957 in the court of the Magistrate, who succeeded in office to the Magistrate who dismissed the complaint and order of acquittal u/s. 447. The learned Magistrate examined the complainant and ordered issue of process for an offence under sec. 427 only. The accused then went up in revision against the order of the Magistrate to the court of the Sessions Judge, but was not successful, his revision having been dismissed as noted above. The learned Sessions Judge has held that sec. 403 sub-sec. (2) was no bar for taking proceedings for an offence under sec. 427 I. P. C. in the case for the order of acquittal was passed for an offence under sec. 427 only. The decisions in Purnanda Das Gupta vs. Emperor (1) and Kristapado Bhakta. vs. The State (2) were relied upon.

(3.) THE revision petition is allowed and the order of the Magistrate regarding issue of process dated the 6th of December, 1957 is set aside. .