S.S. Sandhawalia, J. - (1.) THE point of law which arises for determination in this revision petition may be formulated in the following terms: Where a Magistrate in a warrant case instituted on a complaint illegally purports to acquit the accused persons under Section 259, Code of Criminal Procedure, on the ground of the absence of the complainant, is the High Court barred under Section 439, Code of Criminal Procedure, to set aside such an order at the instance of the complainant.
(2.) THE facts giving rise to the petition may now be briefly surveyed. Anokh Singh, Petitioner filed a complaint under Sections 406, 419, 420, Indian Penal Code, against one Baggu, his wife Smt. Kartar Kaur and his son Mitu. After recording the preliminary evidence and on a prima facie case having been made out, the Respondents were summoned under Section 420, Indian Penal Code. Thereafter the evidence was recorded in the presence of the accused -Respondents and a charge under Section 420, Indian Penal Code, was duly framed. It appears that the evidence of the parties having been concluded the case was fixed for arguments before the learned Magistrate for the 30th of July, 1966. On the said date the Petitioner -complainant could not appear and the learned Chief Judicial Magistrate then proceeded to pass the following order: The complaint has been again taken up at 4.00 p.m. But neither the complainant nor his counsel have turned up so far. It seems that the complainant has no interest in this complaint and he does not want to proceed with the case. Therefore, I have no other alternative but to dismiss the same and I order accordingly. The accused are hereby acquitted. The file be consigned to the record office. Announced. Aggrieved by the above -said order, the Petitioner then moved the Court of Session at Patiala by way of revision. The learned Additional Sessions Judge by his order of the 23rd of June, 1967, dismissed the same on the short ground that the revision petition was not entertainable in view of the provisions contained in Section 439(5), Code of Criminal Procedure, read with Section 417(3) Code of Criminal Procedure. The view of the learned Additional Sessions Judge is that an appeal was competent against the impugned order under Section 417(3) and as no such appeal was preferred by the complainant, the revision is barred by the provisions of the statute. The Petitioner has now come up to this Court against the orders of the two Courts below. Before I examine the rival contentions advanced on behali of the parties it deserves notice that it has been admitted that the warrant procedure applied to the trial of the complaint. As such the only provision under which the Magistrate could have passed the impugned order is Section 259 of the Code of Criminal Procedure which is in the following terms: 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 compounded, or is not a cognizable offence, the Magistrate may, in his discretion, notwithstanding anything hereinbefore contained, at any time before the charge has been framed, discharge the accused. A plain reading of this provision makes it patent that the impugned order of the learned Magistrate was in direct contravention of Section 259, Code of Criminal Procedure. The power to act under this section, apart from other conditions, arises only before the framing of the charge. In the present case admittedly the charge had been framed and further the recording of the evidence of both the parties also seems to have been concluded. The learned Magistrate was thus clearly precluded from invoking the provisions of Section 259, Code of Criminal Procedure. Again this section refers only to the discharge of the accused and does not even remotely warrant an acquittal on the ground of the absence of the complainant. That the impugned order of the learned Magistrate was clearly illegal and incorrect is thus self -evident and indeed the learned Counsel for the Respondent has not seriously controverted this position. That being so the issue is narrowed down to this that even though the order is manifestly in contravention of the provisions of the statute, would the remedy by way of revision under Section 439, be deemed to be barred, if the petition is moved by the complainant as has been done in the present case. The gravamen of Mr. Baldev Kapur's argument on behalf of the Petitioner is that in fact and in law the impugned order of the Magistrate is a manifestly illegal order of discharge. It is submitted that the only order envisaged under Section 259, Code of Criminal Procedure, is one of discharge and the mere use of wrong terminology by the learned Magistrate cannot possibly convert such an order into one of acquittal. In this context it is strongly urged that the powers of the High Court to act by way of revision are wide and indeed it is its duty to set aside a patently illegal order and the same can be done under Section 439, Code of Criminal Procedure. In the alternative it has been argued that even if it be conceded) for the sake of argument that the petition cannot be entertained under Section 439(5), Code of Criminal Procedure, due to the fact of its having been moved by the complainant -Petitioner, the power of the High Court to act suo motu is not taken away and the present case is a fit one for the exercise of such a power. Reliance was placed by Mr. Kapur on Onkarmal Agarwalla v. Tulsinath Gogoi A.I.R. 1950 Assam 81. The facts in that case were identical as the trial there also was under Section 420, Indian Penal Code, and the Magistrate after framing a charge adjourned the case for defence evidence. As the complainant was absent on the adjourned date, the Magistrate proceeded to pass the following order: Complainant absent. No steps taken. Accused acquitted. A reference for setting aside this order was made by the Sessions Judge and the learned Judges of the Division Bench in accepting the reference in their revisional jurisdiction observed as follows: The learned Sessions Judge rightly points out that the learned Magistrate has not found the accused not guilty and he could not, therefore, pass an order of acquittal. The learned Sessions Judge also points out that Mr. T. Ahmed has contravened the provisions of Section 367(1), Code of Criminal Procedure. No points for determination have been set out in the judgment of acquittal, no reasons have been given for the decision. We agree with the learned Sessions Judge, for reasons stated by him, that the order of acquittal passed by the learned Magistrate in this case is one which must be set aside. In Emperor v. Nazo alias Ali Nawaz, A.I.R. 1943 Sind 148 in a similar situation the Division Bench consisting of Davis, C.J., and Waston, J., in a short order whilst accepting the reference in their revisional jurisdiction observed: As has been pointed out by the learned District Magistrate, this order is wrong in two respects. Section 259, Code of Criminal Procedure, does not provide for an acquittal of an accused person in the absence of the complainant but for his discharge, and such order of discharge can only be made at a time before a charge in the case has been framed. In the present case, the charge had been framed, and the absence of the complainant, therefore, could have no effect, and the Magistrate was bound to proceed to dispose of the case on its merits. We must accept the reference and set aside the order made by the Magistrate and return the case to the Magistrate for further disposal from the stage which had been reached when the order of acquittal was made. Mr. Kapur had also placed reliance on (1) Nahar Singh v. The State : A.I.R. 1952 All. 231 and (2) Ramphal v. Emperor, A.I.R, 1914 Oudh 264 and (3) Orilal v. Kalu, 18 Cr. L.J. 1006 but the observations in these cases do not relate to the question which falls for determination in the present case.
(3.) MR . B. S. Khoji in reply has contended that the authorities relied upon by the Petitioner's counsel are prior to the amendment of the Code of Criminal Procedure in 1955. It is submitted that it was only by the said amendment and by virtue of Section 417(3), Code of Criminal Procedure, that a private complainant was granted the right of appeal against acquittal in a case instituted on complaint. It is. therefore, argued that after the incorporation of this provision in the statute a private complainant is entitled to file an appeal against an order of acquittal and thus any revision preferred by him instead would be hit by the provisions of Section 439(5), Code of Criminal Procedure, Reliance was placed on a Division Bench authority of this Court reported as Shiv Parshad v. Bhagwan Das and Anr. : A.I.R. 1958 P&H 228, wherein it was held that in a case instituted on a complaint, an appeal against an order of acquittal therein at the instance of the private complainant is provided by Section 417(3) and if no appeal is preferred then Section 439(5) is a bar to the complainant having recourse to a revision petition. It is, however, noticeable that in the said case the acquittal was on merits after full consideration and not under Section 259, Code of Criminal Procedure. Two other authorities relied upon by Mr. Khoji are Single Bench decisions of the Orissa High Court in (1) The State v. Lachman Murty and Anr. : A.I.R. 1958 Ori 204 and (2) Dukhishyam Sahu v. Bidyadhar Sahu : A.I.R. 1966 Ori 45. In Lachman Murty's case : A.I.R. 1958 Ori 204, the prosecution had been instituted not by way of private complaint but upon a police report. The trying Magistrate had in two cases allowed the offences to be compounded under Section 345(1) and acquitted the accused persons. The State of Orissa instead of challenging the acquittal by way of appeal presented two revision petitions against the orders of acquittal. It was held that as the State had omitted to file a regular appeal under Section 417 it could not move the High Court through the Sessions Judge to reverse the order of acquittal in the exercise of its revisional jurisdiction under Section 439. The provisions of Sub -section (5) of Section 439 were invoked as a bar and the learned Chief Justice of that Court held that in such a case the High Court would be precluded from acting suo motu also. In Dukhishyam Sdhu's case : A.I.R. 1966 Ori 45 a similar view that Section 439(5) bars a revision where an appeal has not been preferred was expressed by R. K. Das, J. In both the above cases it is noticeable that the acquittal was not under Section 250, Code of Criminal Procedure. In Dukhishyam Sahu's case : A.I.R. 1966 Ori 45, the learned Judge had further observed as follows: No doubt in most glaring cases of injustice the High Court has always the inherent power to interfere in revision even at the instance of the private parties against an order of acquittal and in cases where the private party has no right to appeal, he can file revision under Section 439, in cases where the Government fails to exercise its right in preferring an appeal against an order of acquittal.;