Simbhoo Ram Lall and Others vs Kari Hazari

This is a rule calling upon the District Magistrate of Monghyr to show cause why the conviction and sentence should not be set aside, on the ground that, having dismissed the ease in the absence of the complainant, the Magistrate was without authority to recommence proceedings. The case is a summons-case, being one under secs. 447 and 426 of the Indian Penal Code. The complainant appeared before the Sub-Divisional Officer on the 8th May, and made his complaint. He was examined on that date. The accused persons were not summoned, but notice was given to them to be present on the 17th idem. Then, on the 17th May, the complainant did not appear, and the Sub-Divisional Officer of Beguserai records that the complaint was dismissed under sec. 203 of the Code of Criminal Procedure-According to the explanation submitted by that officer, about two hours after wards, the complainant appeared, and the Sub-Divisional Officer considering that his order of dismissal might be regarded as recorded by mistake, scored it through and proceeded to try the case.

We think, under these circumstanced the conviction and sentence in this case cannot stand, and that the Sub-Divisional Officer, having dismissed the complaint under sec. 203, had no authority to re-institute proceedings on his own motion. The order of dismissal was a good and valid order, and could not be set aside by himself. It could only be set aside and fresh proceedings taken, by order of a superior Court. In these circumstances, we make the rule absolute and set aside the conviction and sentence. The fine, if paid, will be refunded.