PANCHU SWAIN Vs. EMPEROR

JUDGEMENT

(1.) This application arises out of a case under Section 323, Indian Penal Code, which was started on the complaint of Krupasindhu Jena. After the prosecution witnesses were examined and cross-examined, a charge under Section 323 was framed against the accused for causing hurt to three persons namely, Krupasindhu Jena the complainant, P.W. 1, Pagu Jena P.W. 3 and Bhagu Samal P.W. 5. The accused summoned some defence witnesses, but as they did not turn up in spite of adjournments, the Magistrate proceeded to deliver judgment and he convicted the accused. Against the conviction the accused preferred an appeal to the Sessions Judge which was dismissed. He then came up in revision to this Court, and Agarwala J. by his order dated 18 August 1941 set aside the conviction and sentence and remanded the case to the trying Magistrate to be tried by him securing the attendance of the witnesses whom the accused wished to examine. The case then went back to the Magistrate.

(2.) While the case was pending before him, the complainant died. On his death the accused filed a petition praying that he may be discharged. This petition was rejected by the Magistrate on 29 January 1942 and he directed that the case should proceed and the Court Inspector would cross-examine the defence witnesses. Against this order the accused moved the District Magistrate but without any success. He has now filed this present application in revision asking that the order of the Magistrate dated 29 January 1942 be set aside.

(3.) Mr. Subba Rao on behalf of the petitioner argues that as the case being one under Section 323, Indian Penal Code, was compoundable, the proceedings abated on the death of the complainant and the Magistrate was bound to discharge the accused. In support of this contention he relies on the decisions of the Punjab Chief Court in Rama Nand V/s. Emperor A.I.R. 1917 Lah. 403 and Labhu V/s. Emperor A.I.R. 1919 Lah. 409 and also on the decision of the Madras High Court in Gulam Mohideen v. Ahamadulla Begam A.I.R. 1923 Mad. 206.