Monoranjan Korar and Another vs Kalipada Singh

Debabrata Mookerjee, J.—This is a petition for quashing certain proceedings against the petitioners. The petitioners were complained against u/s 12A (5) of the Bargadars Act and u/s 143|447|426 of the Indian Penal Code.

As the ease was called on for hearing it was intimated to the learned Magistrate by the lawyer on behalf of the prosecution that the petitioners would be proceeded against only under the special law, viz., the Bargadars Act, and that the charges under the general law, i.e. the Indian Penal Code were to be withdrawn subject to the permission of the Court. The offences complained of all being summons case offences, the provisions of section 248 of the Code of Criminal Procedure were clearly applicable. That section provides that the complainant may at any time before the final order is passed may satisfy the magistrate that there are sufficient grounds for permitting him to withdraw his complaint, and the magistrate when so satisfied may permit him to withdraw and thereupon the accused shall be acquitted. It is to be observed that in this case although no order of acquittal was formally recorded, the proceedings appear to have continued on the footing that the charges under the general law had been abandoned and that the magistrate would to have consented to the withdrawal. Thereafter the West Bengal Bargadars Act having expired it was no longer possible to continue the prosecution u/s 12A (5) of that Act. In these circumstances, a revival of the abandoned charges under the Indian Penal Code was attempted and the proceedings appear to have been revived on the footing that the petitioners could be prosecuted under sections 143|447|426 of the Indian Penal Code. The petitioners objected to these proceedings, and the objections having been overruled, they applied to this Court and obtained the present Rule.

The term of section 248 of the Code of Criminal Procedure to which I have referred certainly require that an order has to be recorded by the magistrate directing the acquittal of the accused. In this case, it is true that there was no such formal order recorded; but it is quite clear from the record of proceedings of the court of the magistrate that the permission asked for by the complainant to withdraw from the prosecution of the charges under Indian Penal Code had been granted. The parties thereafter proceeded on the footing that the only matter pending before the Magistrate was one which related to the allegations under the West Bengal Bargadars Act. In my view the failure of the Magistrate to do his duty cannot be taken advantage of by a party to the proceeding.

My attention is drawn to a decision of this court in the case of Dhanapati Devi Vs. The Corporation of Calcutta, in which it has been held that when a magistrate fails to acquit the accused under sec. 248 one of the essential facts necessary for attracting the operation of the section is absent. This is an observation made in the course of the judgment upon which however the decision in the case has not been made to rest. The learned Judges were considering a case u/s 363 of the Calcutta Municipal Act and held on construction of that Act that the proceeding u/s 363 could not be treated as a criminal proceeding in regard to offences. and consequently neither section 248 nor section 403 of the Code of Criminal Procedure could have any application. While discussing that aspect of the matter, it was observed that even assuming that section 248 of the Code of Criminal Procedure applied, the immunity from a second proceeding could not be claimed as no order of acquittal had been formally passed. It seems to me reasonably clear that the learned Judges did not choose to rest their decision in the case on this construction of section 248 of the Code of Criminal Procedure. Had they done so, the decision would of course, have been binding on me.

It appears quite clear that the present proceedings continued on the footing that the charges under the Indian Penal Code had been withdrawn. The only charge that remained was one u/s 12A (5) of the Bargadars Act. This latter Act having been repealed, the prosecution under it cannot possibly be continued. Indeed, it is not contended before me that the prosecution under the Bargadars Act can continue. All that is said on behalf of the opposite party is that in view of the fact that no order of acquittal had been formally recorded by the learned Magistrate u/s 248 of the Code of Criminal Procedure, there was, in tact, no acquittal, and as such, the charges under the Penal Code were liable to be revived. Apart from anything else, the real offence appears to me to be one under the Bargadars Act. If that suffers extinction by reason of the fact that the Act has run out its life and or has been repealed. i do not think that the present proceedings ought to be allowed to continue. The "result, therefore, is that this Rule is made absolute and the proceedings pending against the petitioners are quashed.