Raghavalu Naicker vs Singaram and Another

Abdur Rahim, J.—A complaint was made under Sections 352 and 504 Indian Penal Code before the 2nd Presidency Magistrate On the

date fixed for the case the complainant was absent and the Magistrate discharged the accused. Then a fresh complaint was lodged with reference

to the, same transaction before the 3rd Presidency Magistrate and he held that so far as the offence u/s 352, Indian Penal Code, was concerned

the order of the 2nd Presidency Magistrate operated as an acquittal and that the case should be proceeded with only with reference to the offence

u/s 504 I.P.C. We are asked to consider whether the order of the 3rd Presidency Magistrate that there has been an acquittal, within the meaning

of the law with respect to the charge u/s 352 by reason of the previous order of the 2nd Presidency Magistrate, is right.

The case relating to an offence u/s 352 is a summons case inasmuch as the punishment for such an offence is not more than 6 months''

imprisonment, while the case relating to Section 504 I.P.C. is a warrant case, the punishment under this section being more than 6 months''

imprisonment. It has been ruled in Rajnarain Kunwar v. Lala Tamoli Raut ILR (1884) C.91 that where there are two offences complained of, one

of which is triable as a warrant case and the other as a summons case, the proper procedure to be followed is that relating to the greater charge,

namely, that of a warrant case. There is no express provision in the Criminal Procedure Code with reference to this matter. The learned Judges of

the Calcutta High Court apparently proceeded on a general principle that the procedure to be followed should be that laid down with reference to

the major charge and not the more summary procedure with reference to the minor offence. Now the Magistrate u/s 235 of the Criminal

Procedure Code is empowered, where more than one offence has been committed by a person by a series of acts so connected together as to

form the same transaction, to try all the offences at one trial or separately. Here the transaction in which the two offences are alleged to have been

committed was undoubtedly one and the same and the Magistrate could therefore try both the offences at one trial.

Then the question is whether he treated the case before him as a summons case or a warrant case, or as two cases, one a summons case and

the other a warrant case. It seems to me that if he wanted to try the two offences together, the case would be one and not two separate cases; and

the punishment which could be awarded against the accused in such a case would be more than six months'' imprisonment and that would bring it

within the definition of a warrant case, It has been pointed out by the learned pleader for the accused that the complainant was absent when the

case was taken up and he argues that it was open to the Magistrate at that stage to separate the two charges and try them as two different cases,

one a summons case and the other a warrant case, and that we must presume that he did so and therefore his order of discharge must be taken to

amount to an acquittal with reference to the offence u/s 352. But the Magistrate passed only one order ''Complainant absent. Accused

discharged''. If he was, as suggested by the learned pleader for the accused treating the matter for trial before him as two separate cases and

wanted to deal with the charge u/s 352, I.P.C. u/s 247 of the Criminal Procedure Code, the proper order for him to pass would have been one of

acquittat. But he did not pass any such order. The order he passed was one of discharge, which would be the proper one if he treated the case

before him as a warrant case coming u/s 259 Criminal Procedure Code which authorises him, in the absence of the complainant in a warrant case,

to discharge the accused if the offence complained of was compoundable, It would prima facie be unreasonable to suppose that where there are

two charges arising out of the same transaction the Magistrate would think of separating the two, applying thereto two kinds of procedure. There

was one transaction in the course of which the two offences are alleged to have been committed and in such cases the proper procedure ordinarily

speaking is to have one trial; and then, as laid down in Bajnarain Kunwar v. Lala Tamoli Raut ILR (1884) C. 91 the case ought to be treated for

purposes of a procedure to be followed as a warrant case having in regard the graver charge. This rule has been followed in Re Sobha-nadri ILR

(1915) M. 503 by a learned Judge of this Court sitting singly and also in Hossein Sardar v. Kalu Sardar ILR (1902) C. 481 It is also mentioned

with approval in In re Samsudiu ILR (1893) B. 711. I would therefore set aside the order of the 3rd Presidency Magistrate in so far as it holds that

the order of the 2nd Presidency Magistrate dated 27th August 1917 amounts to an acquittal of the offence u/s 352, Indian Penal Code.

Napier, J.

I agree. In my opinion there was no summons case before the 2nd Presidency Magistrate at all. The Magistrate took the complaint on his file, a

number was given to it and he was prepared to hear it. The complainant was absent and he passed an order which was undoubtedly intended to

be an order u/s 259 of the Criminal Procedure Code. It is therefore clear to me that he was trying the whole case as a warrant case. The definition

section does not speak of summons offences and warrant offences but of summons eases and warrant cases, and has reference to the case before

the Court. Where the Code deals with offences it divides them into cognizable and non-cognizable but where it is dealing with procedure then it

speaks not of ""offence"" but of ""cases."" I am therefore satisfied that, unless the Magistrate chooses to separate the two offences which are

complained of and take them up, one as a warrant case and the other as a summons case, the fact that one of the offences complained of and tried

by him in one case is one punishable by six months or lees does not make that part of the trial a summons case. In this view it seems to me that the

Magistrate had no option but to pass an order u/s 259 if he decided to dispose of the case and that it was not open to him to apply the procedure

which is only applicable where he is in fact trying a summons case, namely the procedure u/s 247. For these reasons I agree with the order

proposed by my learned brother.