MAHADEO Vs. EMPEROR

JUDGEMENT

(1.) This is a reference by the Additional Sessions Judge of Benares at Jaunpur, by which he recommends that the conviction of Mahadeo Agrahari, Bechan Agrahari, Dargahi Chamar and Sukhram Chamar be sat aside. The facts seem to be that a complaint was filed against five persons, that is to say, the four persons mentioned above and one Mahabir under Secs.447 and 352, Indian Penal Code. The trying Magistrate acquitted Mahabir, convicted Mabadeo and Bechan under Secs.352 and 447, Indian Penal Code, and Dargahi and Sukhram under Section 447, Indian Penal Code, alone. On appeal the learned Magistrate of the First Class, with appellate powers set aside the conviction of. Mahadeo and Bechan under Section 352, Indian Penal Code, but maintained their conviction and the conviction of Dargahi and Sukhram under Section 447, Indian Penal Code. The sentence was a small sentence of fine. The learned Sessions Judge is of the opinion that the conviction is illegal. The first ground mentioned by the learned Judge is that the trial Court had once dismissed the complaint under Section 247, Criminal P.C., and as the dismissal amounted to an acquittal the trial Court had no power to revive the case without a reference to the Hon ble High Court.

(2.) It appears that the case was dismissed on 1 August 1933, by the Tahsildar Magistrate on the ground that on that date neither the complainant nor the accused were present. It is argued by learned Counsel on behalf of the accused that the dismissal must be deemed to be a dismissal under Section 247, Criminal P.C., and such a dismissal amounted to an acquittal. It has however come to light that the case before the Magistrate was not fixed for 1 August 1933, but for 2nd August; 1933, and it was only by a clerical error that the order sheet stated that the case was to be heard on 1 August 1933. The Court had fixed 2nd August 1933, the parties had been informed that the case was fixed for 2 August, 1933, and perhaps the reader, misunderstanding the order of the Court, put down in the order sheet that the case will be heard on 1 August 1933. This mistake was repeated on 1 August 1933, when the case was called on and dismissed in the absence of the complainant. The parties attended the Court on 2 August, 1933, and the complainant learnt with surprise that the case had been taken up a day before and dismissed. The matter was represented to the trial Magistrate and ha after investigation and inquiry even from the counsel for the accused decided that a mistake had been committed and that the dismissal was made under a wrong impression. He therefore ordered on 2 August, 1933, that the case should proceed and that the order of 1 August 1933, be ignored. I think there is nothing illegal in the procedure adopted by the Magistrate. The case was not fixed for 1st August 1933, and the parties were not bound to appear on that date. If the Magistrate under a mistake took up the case on a day for which it was not fixed and dismissed the complaint, then the dismissal of the complaint cannot be said to be one under Section 247, Criminal P.C. The words of the section provide for the dismissal of a complaint in the absence of the complainant on the day for the appearance of the accused, and in order to bring into play the consequences mentioned in Section 247, Criminal P.C., the complainant should be absent on that day. As held by the Calcutta High Court in the case of Achambit Nandal V/s. Mahtab Singh 1915 Cal. 119, the order of the Magistrate dated 1 August 1933, was a mere nullity. The facts of the case in Emperor V/s. Dulla 1923 All. 360, were entirely different and the decision in that case simply amounts to this that where a complaint has been dismissed in effect under Section 247, Criminal P.C., then a subsequent trial on a fresh complaint is barred inasmuch as the dismissal amounts to an acquittal. To my mind there is no force in this objection taken by the accused.

(3.) The next point to which reference has been made by the learned Judge is that when the parties appeared before the Court on 15 August 1933, the accused applied that the matter had been compromised and the learned Magistrate ought to have enquired into the allegations contained in the application. The explanation given by the trying Magistrate and the appellate Magistrate and the original order of the trial Magistrate clearly show that the Tahsildar Magistrate did conduct an inquiry into the matter which appeared to he sufficient to him. It is not possible for any Court to lay down any hard and fast rule as to what the nature and the quantum; of the inquiry should be. The inquiry should be such as would enable a Court to decide upon the allegation of the compromise. In the present case the Tahsildar Magistrate came to the conclusion that the parties had not compromised the matter and it is not possible for a superior tribunal to say that the inquiry made by the Magistrate was inadequate in law.