HAFISULLAH MIAN Vs. UGAM THAKUR

JUDGEMENT

(1.) This is an application on behalf of the complainant. According to him, on the 17th of November, 1958, an occurrence took place in which the opposite parties dismantled a hut belonging to the petitioner and removed its materials causing a damage of about Rs. 200/- to him. He filed a petition of complaint before the Sub-Divisional Magistrate on the next day, and the opposite parties were ultimately put on trial. After recording evidence of certain witnesses for the prosecution, charges were framed against the opposite parties under Section 427 of the Indian Penal Code. After certain other steps were taken, the 7th of March, 1960 was fixed for further hearing of the case. On that date, the complainant was absent, and the learned Magistrate passed an order of discharge under Section 259 of the Code of Criminal Procedure on that very day. On the 10th of March, 1990, the petitioner filed a fresh petition of Complaint, but the same was dismissed by the acting Sub-Divisional Magistrate as it was not the proper form for the petitioner to come after the case had resulted in acquittal of the accused due to his absence. After having failed before the Sessions Judge, the petitioner has come up to this court in revision.

(2.) The point urged by Mr. Sarwar Ali in support of the application is that there was no legal bar to the filing of a fresh petition of complaint after the dismissal of the previous one or the discharge of the accused on trial on the previous complaint petition. He has also urged that the order of discharge itself was illegal. In support of the latter contention, he has drawn my attention to Section 259 of the Code of Criminal Procedure under which the magistrate passed the Order of discharge. It lays down that when the proceedings have been instituted upon complaint, and upon any day fixed for the hearing of the case the complainant is absent, and the offence may be lawfully Compound-able, or is not a cognisable offence, the Magistrate may, in his discretion, notwithstanding anything hereinbefore contained, at any time before the charge has been framed, discharge the accused, Thus, on the terms of the section itself, the accused could have been discharged only before the framing of the charge. In this case, as already stated, charges had already been framed against the opposite parties. Therefore, they could not be discharged under Section 259 of the Code of Criminal Procedure, and the order of discharge is, therefore, absolutely illegal.

(3.) In support of the first contention, it has been urged that the order of discharge does not amount to acquittal, and the Sub-divisional Magistrate was wrong in observing that the accused had been acquitted in the case. The contention is well-founded. A discharge order, in my opinion, does not operate as acquittal and leaves the matter at large for all purposes of judicial enquiry. The defence of autrefois acquit has no application to the case, and, therefore, the Magistrate has jurisdiction to entertain a second complaint.