Kadir and Others vs Emperor

Jwala Prasad, J.—The Rule must be made absolute. The complaint as well as the statement on oath disclosed at the highest an offence u/s 342, Indian Penal Code. In the petition of complaint Section 341 only was mentioned. Both these sections are compound able u/s 345 of the Code of Criminal Procedure.

The complainant filed an application on the 28th July withdrawing from the prosecution, This application was refused, apparently because the Magistrate was of opinion that the complainant bad no right to withraw inasmuch: as the accused was summoned u/s 343, Indian Penal Code, It is conceded by the Magistrate that Section 343 mentioned in the summons was a pure mistake.

The learned Sessions Judge has shown that the detention of the complainant was not for a period of three days which is essential for a conviction u/s 343, Indian Penal Code, and accordingly he upheld the conviction u/s 342. The fact that by oversight Section 343, which is not compound able, was mentioned in the summons, does not take away the right of the complainant to withdraw from the prosecution. The offence from the beginning in the complaint petition, statement of the complainant on oath and in the evidence throughout was u/s 342, Indian Penal Code, which is compound able u/s 345 of the Criminal Procedure Code. After the application of the 28th July withdrawing from the prosecution, the further trial was illegal. The trial is, therefore, vitiated, and the conviction of the accused is without jurisdiction.

The conviction of and the sentence passed on the petitioner are accordingly set aside and he is set at liberty.