NUTBEHARI SARKAR Vs. SARODA PROSAD CHOWDHURY

JUDGEMENT

(1.) THIS was a warrant case before the Magistrate. Summons was issued under Section 323, I.P.C. Some of the witnesses were examined and charges framed. The ease was ultimately adjourned till 28 June 1932. In the meantime it appears that certain negotiations for settlement had been going on, which had previously been brought to the notice of the Magistrate. On that particular day 28 June, when the case was called on, the parties did not appear and the Magistrate thought that it was due to the fact that the settlement had materialized and that the parties had made up their differences. Accordingly, he dealt with the case under Section 258, Criminal P.C., and recorded an order of acquittal. Strictly speaking, there is no doubt that this order cannot be justified. The mere fact of the absence of the accused or complainant would not warrant an order of this kind to be made. The learned District Magistrate with reference to the present rule says that he is not in a position to support the order of acquittal and the trying Magistrate would fain have set aside his order at a later stage in the day had he found himself able to do so. I think it is clear that the order that he did make was wrong. He could not have acted under Section 258, Criminal P.C., because charges had already been framed.

(2.) IN the events that have happened it turns out that the Magistrate had no right to pass this order in the manner that he did. The rule is accordingly, made absolute and the order complained of is set aside. The trial will be proceeded with on that footing.