BHUPATI BHUSAN MUKERJI Vs. AMIO BHUSAN MUKERJI

JUDGEMENT

(1.) This is a Reference under Section 438, Criminal P.C., recommending that the order of the Sub-Divisional Magistrate of Meherpur, summoning the accused upon complaint of an offence under Section 426, Indian Penal Code, be set aside, The facts are that on 17 May 1934, the Magistrate summoned the accused and two others to appear on the 31st. The accused duly appeared and warrants were issued against the other two. The case was adjourned to 14th June. On the 5 the second accused appeared and his case also was adjourned to the 14th. On that day accused 3 had not appeared and the Magistrate ordered the case to go on against the other two, and adjourned it to the 29 for evidence on both sides. On that day the complainant asked for time and the case was adjourned to 12 July, when witnesses were present on both sides, but both sides asked for time in order to compromise the case which was one between relatives. It was adjourned to the 23 when the inquiry officer asked for time and the case was fixed for the 2nd August. Meanwhile, on 30 July, a report was received in the absence of the parties showing that the case had been compromised out of Court.

(2.) On 2nd August, the complainant had not appeared at 12 o clock, and no step had been taken, and the Magistrate acquitted the accused under Section 247, Criminal P.C. On the following day, the complainant filed a fresh petition of complaint upon the same facts, saying that he had been present in the Court precincts on the previous day, but had not heard the Court crier calling the case. Thereupon the Magistrate again summoned the accused, who filed an application to quash the order, inasmuch as the previous order of acquittal was, under Section 403, Criminal P.C., a bar to further proceedings. The Sessions Judge upheld that contention, and has recommended that the Magistrate's order be set aside. Section 247, Criminal P.C., provides that if a summons has been issued on complaint, and upon the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything there in before contained, acquit the accused, unless for some reason he thinks proper to adjourn the hearing of the case to some other day.

(3.) This section does not contain any bar to a second trial. Such bar (if any) depends upon Section 403, Criminal P.C. That section provides inter alia that a person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence. The explanation provides that the dismissal of a complaint, the stopping of proceedings under Section 249, the discharge of the accused or any entry made upon a charge under Section 273, is not an acquittal for the purposes of this action. It is to be observed that Section 247 is not mentioned in this explanation and the maxim expressio unius est exclusio alterius should apply. Moreover, in the Code of 1872, "trial" was defined to mean the proceedings taken in Court after a charge has been drawn up, and includes the punishment of the offender.