MAPPILLAISAMI THEVAR Vs. MUTHUSWAMI IYER

JUDGEMENT

(1.) This case has been referred to us by Govinda Menon, J., because there appeared to be a conflict between the decision of Burn, J., in Ponnammal V/s. Salaxi Ammal 1933 M.W.N. (Crl.) 233 and that of Jackson, J., in Venkatasubba Iyer V/s. Soundararaja Iyengar 1929 M.W.N. (Crl.) 5.

(2.) The respondent filed a complaint before the Stationary Sub-Magistrate of Ramnad against three persons. The allegations against the first accused constituted an offence under Section 355, Indian Penal Code, which is a warrant case, since the offence is punishable with two years rigorous imprisonment. Against the second and third accused, the offence alleged was one punishable under Section 352, Indian Penal Code, which is a summons case, being punishable with only three months imprisonment. These offences were committed by the three accused during the course of the same transaction. It is clear that under the circumstances the procedure to be adopted is that laid down for a warrant case; because otherwise these three accused could not be tried together, for a warrant case clearly cannot be tried by the procedure laid down for summons cases. If any authority was needed for this position, Raghavalu Naicker V/s. Singaram may be referred to, where although there was only one accused he was tried for offences punishable for more than six months rigorous imprisonment and for less than six months im-prisonment respectively, committed in the course of the same transaction.

(3.) At the second hearing, before any witnesses had been examined, the complainant arrived late. When the case was called at the early part of the day, at 11-30 a.m., the complainant was absent. The Sub-Magistrate thereupon passed an order under Section 259 of the Criminal Procedure Code, discharging the accused. The complainant later appeared and said that he had been inadver-tently delayed and asked the Magistrate to again inquire into the matter. The Magistrate examined the complainant and found that he had had good cause for his absence, and passed the order: Take the case on file under Section 355, Indian Penal Code against the first accused and under Section 352, Indian Penal Code against accused 2 and accused 3.