Mst. Surji and others vs State of Haryana

A.S. Bains, J.—The petitioner were committed to the Court of Session in case F.I.R. No. 255/79 to face trial for the offences under sections 307/324/323 Indian Penal Code read with sections 147, 148, Indian Penal Code by the Chief Judicial Magistrate, Bhiwani, vide his order dated 21st September, 1981. It is this order which is challenged by way of this petition u/s 401 of the Criminal Procedure Code.

The case was registered against the petitioners under sections 326/325/323/148/149 Indian Penal Code vide F.I.R. No. 225/1979 in Police Station City Bhiwani, the challan was put in against the petitioners under sections 147, 148, 323, 324 and 326 Indian Penal Code and the case was adjourned for recording the prosecution evidence by the learned Magistrate.

On 12th March, 1981 the learned Chief Judicial Magistrate recorded a compromise between the parties. The statement of the injured was recorded and on the basis of that statement the petitioners were acquitted of the charges vide his judgment dated 12th March, 1981. The order of acquittal is in the following terms:--

The complaint has been compounded for which permission has been granted to the complainant. The statement of the injured P.W. recorded and as such all the accused are acquitted.

The prosecution on 11th April, 1981 applied for the review of acquittal order. It was allowed by the learned Magistrate and the petitioners were summoned who appeared on the aforesaid date.

The only question for determination is whether the Magistrate could review his earlier order of acquittal passed by him. Answer to this question is to be in the negative. The Magistrate has no power of such a review against the acquittal order under the Criminal Procedure Code If the State is dissatisfied by the acquittal order, an appeal can be filed before the High Court u/s 378 of the Criminal Procedure Code. The acquittal order, cannot be set aside on the review application filed by the State. The whole procedure is prescribed u/s 378 of the Criminal Procedure Code. Thus, the impugned order of the learned Magistrate against the accused petitioners is without jurisdiction. The learned Magistrate should have acted in accordance with law and procedure as provided in the Criminal Procedure Code.

Accordingly this petition is allowed and the impugned order against the petitioners to stand their trial before the Sessions Judge is set aside.