Mohd. Hamid Hssain, J. - (1.) THE learned Sessions Judge recommended for the setting aside of the impugned order passed by the magistrate on 28 -3 -1972 recalling his earlier order of acquittal.
(2.) A summons case was pending before the Tahsildar -Magistrate against the Applicant Shanker Lal. The complainant in the case was the Municipal Board, Nainital. On 15 -3 -1972, which was the date fixed in the case accused -Applicant Shanker Lal was present in court but no one appeared on behalf of the complainant Municipal Board. Shanker Lal moved an application on that day that since the complainant was absent he should be acquitted. On 28 -3 -1972 the Tahsildar -Magistrate passed the following order: I have gone through the provisions of Section 247 Code of Criminal Procedure. The complainant was absent on 15 -3 -72. I, therefore, acquit the accused Sri Shanker Lal Shah, Alam Villa Compound Nainital." Later in the day i.e. on 28 -3 -1972 an application on behalf of the Municipal Board was moved on the ground that the order of acquittal passed by the court was illegal. Accordingly, the magistrate cancelled the previous order of acquittal and directed the Municipal Board to adduce evidence. Against this subsequent order reviving the criminal case, the Applicant went up in revision and the learned Sessions Judge relying on the decisions of this Court has recommended for the setting aside of the impugned order on the ground that the order of acquittal once passed could not be set aside and the only remedy for the complainant was to prefer an appeal against the order of acquittal. The view of the learned Sessions Judge is correct. The provisions of Section 247 Code of Criminal Procedure are mandatory that in the event of nonappearance of the complainant in summons case on the date appointed for appearance of the accused, the magistrate shall acquit the accused. In the instant case 15 -3 -1972 was the date fixed when the accused appeared but the complainant Municipal Board was unrepresented. The magistrate ought to have passed the order of acquittal on that very day and specially so when the Applicant by application moved for the order of acquittal in his favour. The application of Shanker Lal which is on record shows that In the margin of that application, 28 -3 -1972 for orders was fixed by the court and accordingly on that date the magistrate passed the order of acquittal. It may be an illegality committed by the magistrate of not having passed the order on the date fixed i.e. 15 -3 -1972 and having passed that order Under Section 247 Code of Criminal Procedure on 28 -3 -1972 but that illegality in passing the order of acquittal cannot be agitated in the magistrate's court for recalling that order, The complainant could go up in appeal against that order of acquittal on the ground of illegality. The order of the magistrate dated 28 -3 -1972 recalling his order of acquittal passed earlier in the day was clearly illegal.
(3.) THE impugned order of the magistrate dated 28 -3 -1972 recalling his order of acquittal is set aside and the reference is accepted.;