Rasik Tatma vs Bhagwat Tanti

K. Dayal, J.—This is a reference u/s 438 of the Code of Criminal Procedure by the District Magistrate, Saharsa.

The material facts are these: One Bhagwat Tanti filed a complaint in the court of the Subdivisional Magistrate, Madhipura, against Rasik Tatma and three others, alleging that they had forcibly uprooted wheat crop from his lands. The: Subdrwsional Magistrate summoned accused Rasik. and, thereafter, transferred the case to the file of the Honorary Magistrate, First Class, Madhipura. This trying Magistrate allowed bail to the accused and summoned prosecution witnesses for the next date. On the next date, that is, the 16th March 1954, trying Magistrate found the complainant absent on call and, therefore, he acquitted the accused u/s 247 of the Code of Criminal Procedure. Subsequently the complainant appeared before the trying Magistrate and filed a petition for reviving the case. On the 2nd April 1954, the learned trying Magistrate passed an order reviving the case. Accused Rasik then moved the District Magistrate for referring the matter to the High Court for setting aside the order of the learned trying Magistrate dated 2nd April, 1954 reviving the case. Upon this application, the learned District Magistiate has referred this case to this Court for quashing the proceeding against petitioner Rasik Tatma.

The only important question for decision in this case is as to whether the case could have been revived or restored after the accused had been acquitted u/s 247 of the Code of Criminal Procedure.

In Ram Mahto v. Emperor 2 Pat LT 170: AIR 1921 Pat 311 (A), Kiran Sarkar and Another Vs. King Emperor, , and Jaikaran Jha v. Dukhan Paswan, Cri, Revn. No. 637 of 1953, D/-8-4-1954 (Pat) (C) (unreported), this Court has held that an order u/s 247 of the Code of Criminal Procedure is a final order of acquittal which operates as a bar u/s 403 of the Code of Criminal Procedure(sic) the trial of the accused for the same offence. The principles of these cases are directly applicable to the facts of the present case. Similar is the view of the Calcutta High Court, see for instance. Kanai Hizra and Others Vs. Golap Hizra, . Mr. A.K. Roy, appearing against the reference, referred us to a solitary case of the Madras High Court namely B. Kotevva v. K. Venkayya AIR 1918 Mad 212 (E) where a different view has been expressed. But it appears that, previous to 1918 and after 1918, the Madras High Court had taken the view as has been taken by the Calcutta and the Patna High Courts, see for instance, In re G. Peddaya ILR 34 Mad 253 (F), In re Sinnu Gounden ILR 36 Mad 1028: AIR 1914 Mad 628 (G), and Devarakonda Lakshminarasimham Vs. Nalluri Bapanna and Others, . Thus, on the authorities brought to our notice the concensus of opinion appears to be that an order of acquittal u/s 247 of the Code of Criminal Procedure operates as a bar u/s 403 of the Code to the trial of the accused for the same offence.

Besides, it has been laid down in a number of cases that, in a criminal case, the Magistrate, after once having signed and completed his order, has no jurisdiction to review or revise the same, see for instance, Gajo Chaudhry and others Vs. Debi Chaudhry and another .

It is, thus, manifestly clear that the learned trying Magistrate had no jurisdiction to revive the complaint case.

In the result, the reference is accepted and the order of the learned trying Magistrate dated 2nd April 1954 is set aside and the fresh proceeding drawn up against Rasik Tatma is quashed.

B.P. Jamuar, J.

I agree.