LAXMI NARAIN ALIAS JWALA PRASAD Vs. ABDUL KARIM ALIAS BABU KHAN

JUDGEMENT

(1.) THE Applicant filed a complaint against the opposite party for an offence Under Section 448 IPC. The case was tried by a bench of lady Magistrates who held that as the Applicant had not given notice to the accused for removing his alleged illegal possession as require under the law, the case could not proceed and discharged the accused Under Section 253(2), Code of Criminal Procedure, by their order dt/ - 27 -1 -1965. Thereafter a notice was given by the complainant as required and he filed a fresh complaint on the same set of facts which came up for hearing before Sri N. K. Gupta, Magistrate First Class, who held that as the offence Under Section 448 is triable as a summons case the order of discharge passed by the bench of lady Magistrate amounted to an acquittal of the opposite party and therefore, the present complaint was barred Under Section 403 of the Code of Criminal Procedure. The Applicant came up in revision before learned Civil and Sessions Judge who affirmed the order of the Magistrate. Hence this revision.

(2.) THE case was tried as a warrant case by the bench of the lady Magistrates inspite of the fact that the Applicant had requested them to try it as a summons case. The order of discharge was passed specifically Under Section 253(2) of the Code. It was therefore, open to the complainant to treat it as an order of discharge and not as an order of acquittal and to file a fresh complaint. The finding of Sri N.K. Gupta, who was seized with the subsequent complaint, that the order of the Bench of the lady Magistrates amounted to an acquittal is erroneous in law for two reasons, firstly because it was specifically passed Under Section 253(2) of the Code of Criminal Procedure and secondly because the case was tried as a warrant case and not as a summons case and therefore, although an offence Under Section 448 is triable as a summons case the order of discharge passed in a warrant trial could not amount to an order of acquittal.

(3.) IN the result this revision is allowed. The impugned order passed on 29 -9 -1965 by Sri Gupta is quashed. The case is sent back to the District Magistrate, Kanpur, to have it tried by some other Magistrate in accordance with law.