A. N. Banerjee, J. - (1.) This appeal is directed against an order of acquittal dated 7-3-74 passed by a learned Judicial Magistrate, Rampurhat, in C. R. Case No. 634 of 1973. Facts leading on to the issue of the present appeal are shortly as follows:-
(2.) On 25-11-72, the petitioner filed a complaint under Section 323, Indian Penal Code stating inter alia that similar complaint filed in Case C. Rule 115 of 71 was dismissed though the complainant had applied for adjournment. The learned Sub-Divisional Judicial Magistrate called for the records of the earlier case and fixed 10-1-73 for hearing and order. On that day some of the accuse/respondents filed an application for dismissing the petition of complaint. That application was rejected by the learned Magistrate on a finding that they had no locus standi. On 2-5-73, the learned Magistrate held that there was no bar under Section 403, Criminal Procedure Code for entertaining the fresh complaint and summoned the accused persons under Section 323, Indian Penal Code. After appearance of the accused, the case was transferred to the file of another Judicial Magistrate for disposal. Before the transferee court, an application was filed on behalf of the accused challenging the maintainability of the present complaint. After hearing both the parties, the learned Magistrate by the impugned order dated 7-3-74, acquitted the accused. Thereafter, the complainant filed this appeal after obtaining special leave of the court.
(3.) Mr. Samarendra Kumar Dutta, learned Advocate with Mr. Sujit Kumar Laik, appearing for the appellant contended that the impugned order of the learned Judicial Magistrate was illegal and without jurisdiction. His first submission was that in the earlier case, the learned Magistrate acted without jurisdiction in acquitting the accused persons under Section 247, Criminal Procedure Code 1898 inasmuch as the complainant was present in court. Accordingly, such an order without jurisdiction was a nullity and as such the learned Sub-Divisional Judicial Magistrate was perfectly justified in ignoring such a null and void order and entertaining a fresh complaint. His second contention was that at the time of issue of the process after taking cognisance the learned Sub-Divisional Judicial Magistrate did take into consideration the fact of acquittal in the earlier case and came to a finding that Section 403, Criminal Procedure Code was not a bar to the present complaint. Upon such finding, he ordered issue of the process under Section 323, Indian Penal Code against the accused persons. Mr. Dutta submitted that the transferee court sat in judgement over such finding of the learned Sub-Divisional Judicial Magistrate when he found that Section 403, Criminal Procedure Code was a bar to the present proceeding. The transferee court as per contention of Mr. Dutta have had no such power of revision of the previous order and as such the impugned order passed by him is also without jurisdiction.;