DEVARAKONDA LAKSHMINARASIMHAM Vs. NALLURI BAPANNA

JUDGEMENT

(1.) THESE are three criminal revision petitions arising out of C.C. Nos. 659 of 1925 and 69 of 1926 on the file of the Stationary Sub-Magistrate of Tanuku. The complainant filed a complaint of mischief against six persons and after some witnesses had been examined the case was adjourned to 25 January, 1926, for further evidence. On that day, when the case was called on, the complainant was not present either in person or by pleader and the Sub-Magistrate, therefore, acquitted the accused under Section 247, Criminal Procedure Code. The next day the complainant applied to have the case restored to file and on 2nd February, 1926 the Sub- Magistrate passed an order accepting his explanation for his absence and restoring the case. On 13 February, 1926 the accused filed a petition to cancel that order and on 19 February, 1926 the Magistrate cancelled it. Cr.R.C. No. 278 of 1926 is against the order of acquittal dated 25 January, 1926, Cr.R. C: No. 418 of 1926, presented by the accused, is against the restoration of 2nd February, 1926 and Cr.R.C. No. 364 of 1926, presented by the complainant, is against the cancellation of that order.

(2.) IT is apparent that the order of 25 January, 1926 being one of acquittal, the Sub- Magistrate was incompetent to restore the case and accordingly that both that order and the subsequent order of cancellation must be deemed to be void for want of jurisdiction. The only question I have to decide therefore is whether there are grounds for setting aside the order passed under Section 247 acquitting the accused. The argument in favour of such interference is in substance that up on the merits the Sub-Magistrate was right in the course he adopted, that the interests of justice require that the complaint should be proceeded with, and that since this Court can do legally what the Sub-Magistrate did illegally it ought to regularise his action. IT is quite true that the petition which the complainant presented on the day following the order contains a very reasonable explanation for his failure to appear when the case was called and, had it been open to the Sub-Magistrate to accept this explanation and restore the case, no fault could have been found with the exercise of his discretion. Unfortunately, however, the Cr.P.C. contains no provision analogous to Order 9, Rule 4 of the Civil Procedure Code enabling a Court to set aside an order passed on default of appearance. Not only so, but in a summons case, such as we are now dealing with, such a default entails not a mere discharge of the accused but his acquittal. I do not think that there is any reason to hold that an acquittal under this section stands on any different footing from an acquittal ordered in any other circumstances, as for instance under Section 258, Criminal Procedure Code, and it is unnecessary to cite authority for the rule of practice that upon an application in revision an acquittal should very rarely be set aside. Apart from these general principles of procedure there is authority more precisely applicable here. Re Sinnu Goundan (1914) ILR 38 M 1028 : 26 MLJ 160 relates to a case in which owing to the complainant's absence, the Magistrate acquitted the accused under Section 247, Criminal Procedure Code, and it was subsequently discovered that the accused himself had contrived the absence of the complainant by getting him arrested on a false charge. The District Magistrate referred the case for the orders of the High Court under Section 438, Criminal Procedure Code; but Miller and Spencer, JJ., refused to set aside the order of acquittal partly no doubt because the District Magistrate might have moved the Government to appeal, but partly also because the Magistrate's action in acquitting the accuse d, upon the information which he had at the time before him, was a perfectly legal order. As observed by Spencer, J., it has always been regarded as a sound rule of practice not to interfere in revision when there is no error of law on the face of the record. The same principle was followed in a recent unreported case. (Cr R.C. No. 772 of 1925) which also related to an acquittal under Section 247, Criminal Procedure Code. There, although the complainant appeared five ? minutes after the case was disposed of, the learned Judges found that the Magistrate had acted within his powers, that his order was not illegal and that it would not therefore be right for the High Court in revision to interfere with it. Adopting this principle I must dismiss Cr.R.C. No. 278 of 1926. IT follows that Cr.R.C. No. 418 of 1926 is allowed and Cr.R.C. No. 364 of 1926 is dismissed.