Kanhaiyalal vs Bhanwarlal and Another

H.R. Krishnan, J.

This is an application by the private complainant in a criminal case u/s 417 (3) of the Cr. P. C. from an order of acquittal u/s 247 of the Criminal Procedure Code recorded by the Magistrate. The questions fire whether the Magistrate had, in this case, jurisdiction to acquit under the section, or whether, if he had jurisdiction, his reasoning is so perverse as to justify an appeal u/s 417, Cr. P. C. The first alternative is remediable by an application in revision; while the second may come u/s 417, Cr. P. C.

The facts are that in the complaint case No. 164 of 1956 (one started after the coming into force of the Cr. P. C. Amendment Act, 1955, Act 26 of 1955), the two members of the opposite party were on trial under charges respectively under Ss. 323 and 324, I. P. C. The hearing had been completed before 10-12-1957, and that a date had been fixed for "arguments". It was again adjourned to 21-12-57 for this same purpose. On that date the complainant was absent and his lawyer sought one day''s further adjournment which was refused. The learned Sessions Judge proceeded one step farther, and ordered:

"In view of the absence today of the complainant I dispose of this case u/s 247, Cr. P. C. and I acquit the accused persons of the charges under Sections 323 and 324, Cr. P. C."

The complainant has come to this Court with an allegation that this order was perverse and he may be given special leave to appeal against acquittal.

An examination of this case shows that :the learned Magistrate really had no jurisdiction to make an order u/s 247, Cr. P. C, Firstly, one of the charges being under S. 324 punishable with imprisonment up to 3 years, the case was not a summons case. Secondly, the case had not been adjourned on that date or even on the earlier date that is 10-12-1957 for "hearing". It had been put up for arguments, in other words, to enable the'' respective lawyers, if they chose, to explain the evidence and the circumstances brought on record.

Whether or not a separate date should be given for such arguments is another question. But the party is not bound to argue in such a case, and may just as well keep quiet. Thus it was neither a summons case nor was it adjourned for hearing in the proper sense of term. When he found himself unable to give one day''s adjournment to the complainant the Magistrate should have proceeded to hear the argument, if any, of the accused, invite the complainant''s lawyer to reply, if he chose, and whether he replied or not, fix a date for judgment on merits.

I find, therefore, that the Magistrate''s order u/s 247, Cr. P. C is really one without jurisdiction. The present application is dismissed as this is not a case for appeal. It is open to the complainant to file a proper application in revision in the manner provided in the Cr. P. C.