Kiran Sarkar and Another vs King Emperor

Foster, J.—The complainant Ladha Manjhi filed a criminal complaint on the 2nd January 1923 against Kiran Sarkar and the order of the Magistrate was that the accused should be summoned u/s 426 of the Indian Penal Code for the 23rd January. On that date neither party appeared. The complainant was ill and has since produced a medical certificate to prove the fact; and the accused Kiran Sarkar had received no summons. The Magistrate thereupon recorded an order of acquittal u/s 247 of the Criminal Procedure Code. On the 17th February 1923 Ladha Manjhi filed a second criminal complaint on exactly the same subject matter and against the same accused Kiran Sarkar as the previous complaint. The accused Kiran Sarkar appeared and filed a petition asking the Court to dismiss the complaint on the ground that he had been already acquitted. The Magistrate rejected this petition, his reason being that Section 403 of the Criminal Procedure Code can only come into operation when a person has been "tried" by a Court and convicted or acquitted. The Magistrate expressed the opinion that the word "tried" could only be applied when an accused was brought before the trying Court and put in peril of conviction. The accused Kiran Sarkar is now moving this Court in revision in respect of the order of the Magistrate refusing to apply Section 403 of the Criminal Procedure Code to his case.

I have no hesitation in holding that the magistrate''s order is incorrect. The question is whether Kiran Sarkar has been tried and acquitted. Looking at Chapter XX "Of the trial of summons cases by Magistrates" we see that it is headed by Section 241. "The following procedure shall be observed by Magistrates in the trial of summons-cases". Section 242 to 246 certainly portray a trial of the nature referred to by the learned Magistrate where the accused appears, shows cause, the evidence is heard and he is either acquitted or convicted. But that is not the whole of the Chapter describing the procedure for the trial of summons-cases. There are the provisions of Sections 247 and 248 In regard to these two Sections I cannot understand how either on the wording of the Section or on general principles it can be asserted for a moment that the accused must either be present or must have been summoned to Court. A complainant may come into Court even before process has been served upon the accused and withdraw the complaint or he may imply a withdrawal by absenting himself. In both cases the only restraint upon his discretion in the matter is the general control of the Court, the Magistrate may refuse permission to withdraw, or if the complainant absents himself he may adjourn the case without taking notice of the complainant''s abstention. On the other hand, the Magistrate may, and he would ordinarily, follow the wishes of the complainant, who, it should be remembered, is in a summons-case ordinarily the person in charge of the conduct of the case. Here the complainant Lodha Manjhi had notice of the date and was in charge of the conduct of his own case; he did not appear, and the Magistrate, quite within his jurisdiction, acquitted the accused. The fault in the argument of the learned Vakil who his opposed this petition is that he lays stress, upon a matter which is only of secondary importance, if of any importance at all, namely, the presence or absence of the accused. The important matter for an order u/s 247 of the Criminal Procedure Code is the presence or absence of the complainant. In my opinion the order u/s 247 is a final order of acquittal which operates as a bar u/s 403 of the Code. I am prepared to follow in this respect Ouggilapu Paddaya, In re [1911] 34 Mad. 253. Another Madras ruling In re Muthiamoopan [1913] 36 Mad. 31 that has been quoted does not appear to me to be of much value for the decision of the present case. In that case the Magistrate had received a charge sheet from the Police recommending proceedings u/s 107 of the Code of Criminal Procedure and he endorsed the charge sheet with an order acquitting the accused. When a second proceeding was instituted the parties quite incorrectly appealed to the terms of Section 403 of the Code which in fact has no bearing on proceedings under Charter VIII. But in that judgment there is a remark that neither an order of discharge nor of acquittal can properly be made in a case where the accused has not been directed to appear at all. In the present case the accused had been directed to appear in the order passed upon the complaint. The order had certainly not reached the accused, but, as I have shown before, that is not necessary where the Magistrate proceeds u/s 247 or Section 248 in the course of the trial.

The petition is allowed, the order of the Sub Divisional Magistrate is set aside and it is declared that the petitioners have been duly tried and acquitted in the sense of Section 403 of the Criminal Procedure Code. The proceedings in this case will be quashed.