- (1.)THIS reference comes on the report of the learned Additional District Magistrate, Jodhpur dated 30th May, 1959.
(2.)THE facts giving rise to it are that the non-petitioner in this Court i. e. Shri Shree Krishan presented a complaint in the Court of the Magistrate 1st Class Jodhpur against the petitioner on 20th March, 1957 fox offences under Sections 426, 447, 448 and 379 I. P. C. The Magistrate proceeded to try the case as a warrant case because the offence under Section 379 I. P. C. could be tried only as a warrant case. On the 11th of August, 1958, the complainant was to produce his witnesses. On that date, he was absent and therefore the accused were discharged by the Magistrate under Section 259 Cr. P. C. On the very next day i. e. 112-8-58, the complainant presented a fresh complaint in which he reiterated all the facts and allegations which were narrated by him in his original complaint dated 20th March, 1957. It was further added by him that his case was not shown on the cause-list and therefore he was doubtful if it would be heard on 11-8-1958. He remained present outside the Court till 12-30 p. m. and thereafter he went away to answer the call of nature since he had pain in his stomach. On his return at about 1-00 p. m. , it was found by him that his case was dismissed on account of his absence. It was therefore prayed by him that the case should be tried again. The Magistrate entertained this fresh complaint and issued processes against the accused. The accused presented an application to the effect that the offences under Sections 447, 448 and 426 alleged against them were triable as a summons case, that the order dated 11-8-58 should be considered as one of acquittal under Section 247 Cr. P. C. and therefore they could not be tried again. As regards the offence under Section 379 I. P. C. , it was urged that the order passed by the Magistrate should be deemed to have been made under Section 253 (2) Cr. P. C. and therefore the complainant could not proceed against them even in respect of that charge. This application was dismissed by the Magistrate on 2-2-1959. Aggrieved by that order, the accused filed a revision application which was heard by the learned Additional District Magistrate Jodhpur. In his opinion, the order of the Magistrate dated 11-8-1958 should be taken as one of acquittal and therefore he has recommended that the order of the Magistrate dated 2-2-1959 should be set aside.
(3.)LEARNED Counsel for the accused has tried to support the reference by referring to Venkatarama Iyer v. Sundaram Pillai AIR 1923 Mad 439, Mst. Manni v. Ramakishan 1950 Raj LW 223 and Daulat Ram v. Ram Kishan AIR 1958 Punj 317.
;