EMPEROR Vs. NAZIR HUSAIN

JUDGEMENT

(1.) This is a reference by the Sessions Judge of Dehra Dun asking this Court to order a re-trial, if it thinks fit, in a case where an accused person has been discharged, the Magistrate purporting to act under Section 259 although, a charge having been framed, he could not act under that section. The facts are simple. A complaint was lodged against the accused charging him with having shoe-beaten the complainant, The assault was in itself comparatively trifling but for the well- known fact that beating with shoes adds insult to any injury that may be inflicted. A charge was framed against the accused and a date was fixed for the complainant to attend with his witnesses for cross-examination. The complainant and also his witnesses failed to attend, and I may state immediately that I am not able to find on the record, nor is the Assistant Government Advocate able to show me, that the complainant has ever explained his failure and the failure of his witnesses to attend. In this connexion the Magistrate in his final order pointed out that even if the complainant had missed his train he could have come by lorry as the Magistrate waited for him till 2 p.m. It is some indication that the complainant did not miss his train and that the witnesses also failed to appear. There is room therefore for holding that there may be some substance in the accused person's petition to this Court that the complainant and his witnesses deliberately stayed away because they did not want the trouble of going out into the camp where the Magistrate was, and were quite willing to harass the accused and his witnesses by letting them go unnecessarily. However that may be, there is no explanation before me and apparently none available as to why the complainant and his witnesses failed to appear.

(2.) On their failure to appear the Magistrate passed an order discharging the accused, purporting to act under 8. 259, Criminal P.C. He admits that he could not act under that section as the accused had bean charged, but he quite properly states his difficulty that he is unaware what course should have been adopted and practically invites assistance on this point. There were two courses open to him: firstly, to adjourn the case. He has given good reasons for not wishing to adopt that course. Secondly, if he felt that there were no good grounds for adjourning the case he should have found the accused "not guilty" and acquitted him, acting under Section 258(1). It is true that he had so far formed an opinion that the accused was guilty, in that he had framed a charge against the accused and there had been no subsequent evidence given to suggest that the charge had been wrongly framed, but the accused was entitled to a final judgment, not merely on the preliminary evidence of witnesses on examination-in-chief, bat on that evidence after it had been submitted to cross-examination; and if the complainant himself, in the particular facts of the case, is adjudged responsible for the witnesses of the prosecution not being available for cross-examination, he is himself responsible for rendering that testimony unsafe to rely upon. The Magistrate should then have held that in the circumstances of the case he had no alternative but to find the accused "not guilty" and have not acquitted him. The finding "not guilty" is a technical expression and not necessarily equivalent to a finding that the accused did not commit the acts charged.

(3.) I set aside the order of the Magistrate discharging the accused and for that order, there being no adequate grounds for ordering the ease to be taken up afresh, substitute an order of acquittal. To this extent the reference is accepted. Let a copy of this order be sent to the Magistrate for his information.