DAMDOO Vs. HARBA

JUDGEMENT

(1.) THE applicant Damdoo has filed the present application for revision of the order of acquittal passed by the Bench of Honorary Magistrates, 2nd class, Sitabuldi, on 19-10-1926, in Criminal Case No. 306 of 1926. The present applicant filed a complaint of offences under Sections 323, 147 and 506, I. P. C, against the seven non-applicants on 12-10-1926. On that date the complainant's preliminary statement was recorded and summons were issued to the complainant's witnesses and to the accused for 19-10-1926. Non-applicants 5 to 7 were on 19-10-1926 exempted from appearance under Section 205, Criminal P. C, and were allowed to be represented by a pleader. These three non-applicants, it may be stated, are the wives of Non-Applicants 1, 2 and 3. The applicant (complainant) appears to have resented the order dispensing with the personal attendance of non-applicants 5 to 7 because when the Bench called on the complainant to go into the witness-box declined to do so on the said ground. The Magistrates thereupon held that there was no evidence against the accused and dismissed the complaint as frivolous and vexatious and in due course passed an order under Section 250, Criminal Procedure Code, ordering the complainant to pay Rs. 70/- compensation. That order has, I may say, already been set aside by the City Magistrate in appeal on 5-12-1926. The complainant has now come up here on revision on the allegation that the procedure of the Magistrates was incorrect.

(2.) IN the first instance, it is urged that Section 242, Criminal Procedure Code, is an imperative provision and it was incumbent on the Magistrates to state the particulars of the offence to such accused at least as were present and to ask them to show cause why they should not be convicted. There was doubtless a technical irregularity here, although it is perfectly obvious on the facts of the present case that the Magistrates concluded from the fact of the accused being represented by a pleader that their position was one of denial against them. Applying the analogy of Section 535, Criminal Procedure Code, I am of opinion that, in the circumstances of the present case, no failure of justice resulted from the omission to take action under Section 242 of the Code. It is utterly impossible to assume in the circumstances of the present case that there was the slightest ground for supposing that the non-applicants would have pleaded guilty and, if the absence of a charge in a criminal case, where a charge should ordinarily be framed, does not necessarily render a trial invalid, a fortiori the omission to comply with the provisions of Section 242, Criminal Procedure Code, is nothing more than a curable irregularity.

(3.) IN the peculiar circumstances of the case, however, I decline to order any further enquiry into the present complaint. In the first place, it has been the contumacious attitude of the complainant, which has, in reality, bean responsible for the anomalous result of the trial. Secondly, that contumacious attitude seems to have been entirely due to a vindictive wish on his part to drag the women accused in this trifling case into Court. Thirdly, while I am fully of opinion that the trial was illegal, this Court will not ordinarily interfere with applications against acquittals in view of the fact that the Legislature has provided a special channel for appeals against acquittals being filed. The principles on which this Court will interfere in exceptional cases by way of revision against orders of acquittal, have been fully considered and laid down by me elsewhere and it is needless to repeat them here. It must suffice to say that the present is a case where the complainant is deserving of not the slightest sympathy and where it would be an abuse of justice to allow him to carry his complaint any further in view of his attitude in the Magistrate's Court.