Decided on May 03,1985

The State of Tripura Appellant
Shri Chandra Sekhar Dey And Ors. Respondents


Manisana, J. - (1.)THIS is a reference made by the Additional Sessions Judge, South Tripura under Section 395(2), Code of Criminal Procedure for a decision of the High Court on a question of law, namely, whether the Additional Sessions Judge has jurisdiction to decide the criminal revision which was pending before him 8gainst an order of the Sub -Divisional Judicial Magistrate, Sabroom passed on 7.12.1983 in G.R. Case No. 129 of 1982 discharging the Respondents for nonappearance of the informant and the witnesses. The order is, according to the Additional Sessions Judge, an order of acquitted and not of discharge.
(2.)THE facts of the case may briefly be stated. The learned Magistrate, on 22.8.83 framed a charge under Section 394, IPC against the Respondents. The Respondents pleaded not guilty The case is triable under Chapter XIX, Code of Criminal Procedure and is also a case instituted on a police report. Therefore 14.9.83, was fixed for examination of witnesses under Section 242, Code of Criminal Procedure On 14.9.83 be informant, Officer in -charge of Sabroom P.S , Sri Chakma, was Dot present but three other witnesses were present. The Learned Magistrate adjourned the case on the ground that the informant was not present and ordered the three witnesses who were present to execute a P.R. Bond of Rs. 50/ each for (securing their attendance on the next date fixed. Thereafter, 4.10.83, 7.11.83, 25.11,83 and 7.12.83 were fixed for examination of the witnesses. However, no witness could be examined on those dates as no witness was present. On 7.12.83 the learned Magistrate dropped the case and discharged the Respondents for nonappearance of the informant and the witnesses. Against the aforesaid order dated 7.12.83, the State failed the Criminal Motion case No. 15(2)/84. After hearing the parties, the reference has been made by the learned Additional Sessions Judge.
There is no provision in Chapter XIX, Code of Civil Procedure, for admitting the accused on the ground that the prosecution has not produced its witnesses in a trial of warrant case instituted on a police report. However, provisions have been made in Section 242(2), Code of Civil Procedure, for summons to be issued to the witnesses on the application of prosecution. The Magistrate has all the power to summon material witnesses under Section 311, Code of Criminal Procedure Section 350. Code of Criminal Procedure empowers the Magistrate to punish a witness for his non -attendance in disobedience to the summon issued to the witness. In view of the discussions above, an order of acquittal can be passed after the trial. In the instant case, there was no trial. As such, the impugned order is not an order of acquittal. There is also no provision in Code of Criminal Procedure to discharge an accused after a charge has been framed against him. In the instant case, a charge under Section 394, IPC was framed against the Respondents. Therefore the passing of the impugned order of discharge of the Respondents and the closing of the case is not contemplated by Code of Criminal Procedure. In this view of the matter, the learned Magistrate has no jurisdiction to pus the impugned order and the impugned order is illegal and void. This view finds support from the decision of the Supreme Court in Ratilal Bhanji v. State of Maharattra, AIR 1919 SC 94:

Assuming argu -endo, the Magistrate's order of discharge was an order of 'acquittal' then also, it does not alter the fact that 'acquittal' was manifestly illegal. It was not pasted no merits, but without any trial, with consequent failure of justice. The High Court has undoubtedly the power to interfere with such a patently illegal order of acquittal in the exercise or its revisional jurisdiction under Section 439 and direct a retrial. The High Court's order under appeal, directing the Magistrate to take de novo proceedings against the accused was not barred by the provisions of Section 403, (of the Code of 1898), the earlier proceedings taken by the Magistrate being no trial at all and the order passed therein being neither a valid 'discharge' of the accused, nor their acquittal as contemplated by Section 405(1)

(emphasis added)

In view of the discussions above, the impugned order is neither an order of acquittal nor an order of discharge, It is a simple illegal sad void order,

(3.)THE mistake of the learned Magistrate amounts to abuse of the process? of the Court and causes injustice. In order to prevent the abuse of the process of the Court or to secure the ends of justice and to avoid further delay in the disposal of the case, I am inclined to exercise my power under Section 482, Code of Criminal Procedure.

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