MEHTA, J. - (1.) A complaint under secs. 447 and 323, I. P. C, was filed by Satyapal in the court of the Magistrate, First Glass, Rajgarh, District Alwar. Offences under secs. 447 and 323, I. P. C. , are in the nature of summons cases. The learned Magistrate, however, tried the case as a warrant case following the procedure given under Chapter XXI of the Code of Criminal Procedure. The evidence of the complainant was recorded. Charges were framed against the accused persons on March 12, 1965, and the case was fixed for further cross-examination of the prosecution witnesses on April 3, 1965. After the prosecution evidence was concluded, defence evidence was recorded and the case was fixed for final arguments. Later on, the case was adjourned from time to time for sundry reasons and the final arguments could not be heard on the appointed date. The case was eventually fixed for arguments on August 25, 1966. That day the complainant and his counsel remained absent. The trial court dismissed the complaint and acquitted the accused in accordance with sec. 247, Cr. P. C. A revision application was moved against the order of acquittal in the court of Additional District Magistrate, Alwar. The learned Magistrate held that an appeal lay against an order of acquittal, under sec. 417, Cr. P. C, and not a revision. He, therefore, dismissed the revision-application.
(2.) AGGRIEVED against the above order, the complainant Satyapal has filed this revision petition, Learned counsel for the applicant submits that the trial court tried the accused under the procedure laid down for the trial of a warrant case, but eventually framed charges under secs. 447 and 323, I. P. C. which are offences triable as a summons case. The lower court, having elected to try the case by the warrant case procedure, had no power to act under sec. 247, which applies only to a case triable under the summons case procedure. Learned counsel for the petitioner, in the end, asked the Court to set aside the order passed by the trial court, acquitting the accused in accordance with the provisions of sec. 247, Cr. P. C. No doubt sec. 247, Cr. P. C. appears in Chapter under the heading "of the trial of Summons cases by Magistrate" and not under Chapter XXI meant for the trial of warrant cases by Magistrates. Sec. 247, lays down that a person charged with a summons case offence is entitled in law to an acquittal if the complainant does not appear in the court. There appears to be no reason why the right of acquittal should be refused to the accused simply because the Magistrate fell in error in not trying the case in accordance with the prescribed procedure as given in Chapter XX, Cr. P. C. Had the Magistrate tried the case ab initio under Chapter XX, Cr. P. C, the acquittal on the ground of the complainant's absence could have been perfectly legal. There is no justification either in law or in reason why the accused should be deprived of his right of acquittal merely because the Magistrate went wrong in electing the procedure to try the case as a warrant case or because the complainant exaggerated the case against them. To hold otherwise would tantamount to permit a pure technicality to supersede a substantial legal right. In support of the above proposition reference is made to the judgment of this court in Mst. Manni vs. Ramakishan (1 ). In that case the complainant Mst. Manni filed a complaint on April 14, 1948, under secs. 313, 446 and 504, I. P. C. , against the accused Rama Kishan, and Begulal in the court of the First Class Magistrate, Sikar. After holding an inquiry the Magistrate framed charges against both the accused under sec. 341, I. P. C, which is a summons case. The accused applied for an opportunity to cross-examine the prosecution witnesses. On April 29, 1949, the complainant failed to appear. The Magistrate, thereupon, dismissed the complaint and acquitted the accused presumably under sec. 247, Cr. P. G. Sessions Judge, Sikar, recommended that when once the trial of the case was taken as of a warrant case, the Magistrate had no authority to apply the procedure of a summons case trial. He, therefore, suggested that the order of dismissal of the case in default being illegal, should be set aside. Ranawat J. (as he then was) observed that an accused person is entitled, as a matter of right, to acquittal under sec. 247, Cr. P. C. If the complainant makes default on any date fixed for the hearing of the case, provided it be a case of the nature of a summons case. This authority is on all fours with the facts of the present case. There is another relevant citation - Venkatarama Iyer vs. Sundaram Pillai (2 ). That case was decided by a very eminent Judge Wallace J. of the Madras High Court. It was held that right of the accused to the benefit under sec. 247 Cr. P. G. does not depend upon the procedure which the Magistrate chose to adopt or was constrained to adopt by the complainant, but it rested on the nature and the class of the offence for which he is being tried at the time of the complainant's failure to appear in court. In that view of the matter, thought the summons case was tried under Chapter XXI, Cr. P C. . . the trial court was justified in dismissing the complaint and in acquitting the accused under sec. 247, Cr. P. C. when the complainant or his pleader failed to appear before the court on the date fixed for the hearing of the case. I find nothing illegal in the order of the trial court or in that of the court of the Additional District Magistrate, Alwar. I am, therefore, not prepared to interfere with their finding and hereby dismiss this revision petition. .;