MONORANJAN KORAR Vs. KALIPADA SINGH ROY

JUDGEMENT

(1.) This is a petition for quashing certain proceedings against the petitioners. The petitioners were complained against under section 12A (5) of the Bargadars Act and under section 143|447|426 of the Indian Penal Code.

(2.) As the ease was called on for hearing it was intimated to the learned Magistrate by the lawyer on behalf of the prosecution that the petitioners would be proceeded against only under the special law, viz., the Bargadars Act, and that the charges under the general law, i.e. the Indian Penal Code were to be withdrawn subject to the permission of the Court. The offences complained of all being summons case offences, the provisions of section 248 of the Code of Criminal Procedure were clearly applicable. That section provides that the complainant may at any time before the final order is passed may satisfy the magistrate that there are sufficient grounds for permitting him to withdraw his complaint, and the magistrate when so satisfied may permit him to withdraw and thereupon the accused shall be acquitted. It is to be observed that in this case although no order of acquittal was formally recorded, the proceedings appear to have continued on the footing that the charges under the general law had been abandoned and that the magistrate would to have consented to the withdrawal. Thereafter the West Bengal Bargadars Act having expired it was no longer possible to continue the prosecution under section 12A (5) of that Act. In these circumstances, a revival of the abandoned charges under the Indian Penal Code was attempted and the proceedings appear to have been revived on the footing that the petitioners could be prosecuted under sections 143|447|426 of the Indian Penal Code. The petitioners objected to these proceedings, and the objections having been overruled, they applied to this Court and obtained the present Rule.

(3.) The term of section 248 of the Code of Criminal Procedure to which I have referred certainly require that an order has to be recorded by the magistrate directing the acquittal of the accused. In this case, it is true that there was no such formal order recorded; but it is quite clear from the record of proceedings of the court of the magistrate that the permission asked for by the complainant to withdraw from the prosecution of the charges under Indian Penal Code had been granted. The parties thereafter proceeded on the footing that the only matter pending before the Magistrate was one which related to the allegations under the West Bengal Bargadars Act. In my view the failure of the Magistrate to do his duty cannot be taken advantage of by a party to the proceeding.