- (1.)IN a case under section 448/336 R. P. C. pending in the court of the Sub -Judge Judicial Magistrate, Jammu, the complainant remained absent on 17 -1 -1975 when the court dismissed the case for his non -appearance under section 247 Cr. P. C. and discharged the accused. Against this order revision was filed before the learned Additional Sessions Judge, Jammu, who has upheld the order of the trial magistrate. Aggrieved by this order, the complainant has come up in further revision before this court.
(2.)MR . Sehgal appearing for the petitioner has contended that the provisions of section 247 Cr. P. C. do not apply to the present case inasmuch as that section provides that if the summons have been issued on complaint and upon the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the magistrate shall notwithstanding herein before contained, acquit the accused, unless for some reasons he thinks proper to adjourn the hearing of the case to some other day. It is urged that no summons was issued on complaint but -a warrant was issued. However, the learned Magistrate did not acquit the accused but passed an order of discharge. The order, it is submitted, was, therefore, erroneous in law.
(3.)I have given my thoughtful consideration to the legal proposition debated before me.
In so far as the second contention raised by Mr. Sehgal that the magistrate should have passed an order of acquittal and not of discharge and, that, therefore, the order is bad in law and cannot be sustained, is concerned, I am not in agreement with him. inasmuch as the order of discharge can be construed to be an order of acquittal. If the magistrate has wrongly recorded the word "discharge" that can be interpreted as an order of acquittal.