Brij Narain, J.
1. This is a reference under Section 438, Cr. P.C. by the learned District Magistrate, Tripura, dated 6-1-1955 in criminal motion No. 25 of 1954 recommending that the order of acquittal dated lst/3rd July, 1954 passed by Sri N. C. Saha, Magistrate 2nd Class, Kailasahar in criminal, case No. 134 of 1954 be quashed.
2. It appears that Sri Arnulya Ranjan Pal complainant went to the shop of Sri Monoranjan Roy opposite party No. 1 on 5-5-1954 to purchase three packets of playing cards and shell buttons costing Re, 1/14/-. When the complainant paid the priog the opposite party No. 1 gave him the buttons but not the packets of playing cards and he placed the money inside his box. The complainant demanded the packets of cards but the opposite party wanted an additional payment of two annas. The complainant naturally wanted to get back his money but the opposite party No. 1 threatened him and so he came out of the shop.
Later on the opposite party No. 1 called him back saying that he should take back his money and when the complainant went inside, the opposite party No. 1 beat him with wooden sandals and also with fists. The other opposite parties also joined the opposite party No. 1 with the result that the complainant suffered simple injuries.
A complaint was filed regarding this incident on 7-5-1954 and at the time of the examination of the complainant under Section 200, Cr. P.C. two marks of injures were noticed in the back and one mark of injury was found on the hand of the complainant. The dimensions of these injuries have not been noted nor has it been mentioned that these marks of injuries were of recent date. The complainant claimed to have got himself examined by the hospital doctor but no injury report was produced along with the complaint in Court.
3. The complainant examined 5 witnesses before the framing of the charge but the medical evidence was not produced and so from the evidence on the record it cannot be referred that the complainant received any serious injuries.
4. The charge, against the opposite parties was framed on 14-6-1954 under Section 323, I.P.C. and the case was adjourned to 1-7-1954. On 1-7-1954 the complainant and his witnesses were absent and the complainant's counsel gave an application for adjournment on the ground that he wanted to summon new witnesses. This application was rejected by the learned Magistrate and the accused were acquitted for want of evidence. The complainant went in revision before the learned District Magistrate who has referred the present case to this Court,
5. The learned District Magistrate has referred this case for setting aside the acquittal order passed by the trial Court on two grounds. The first ground is that the learned Magistrate in this case did not ask the accused on the day when the charge was framed or at the commencement of the next hearing of the case, i. e., on 1-7-1954 whether they wished to cross-examine any of the witnesses for the prosecution.
The learned District Magistrate does not appear to have gone through the record very carefully as I find that the learned Magistrate had put these questions definitely to the accused after framing the charge and these Questions along with the answers are to be found on the same paper on which charge is framed but on the back side. If the attention of the learned District Magistrate had been invited to this, I am sure, this reference would not have been made.
6. The second ground on which this reference, is based is that the learned Magistrate failed in his duty to summon and recall the witnesses for cross-examination. There is no doubt that in - 'Saghir Uddin v. Mt. Munnf AIR 1949 All 428 (A), it has been held that it is the duty of Magistrate & not of complainant to recall prosecution witnesses for cross-examination Under Section 256, Cr. P.C. & the duty of procuring their attendance cannot be laid on the shoulders of the complainant. But where the complainant undertakes to produce his witnesses himself in the Court and thereby prevents the Magistrate from issuing summonses against them, it would not be right to hold him responsible for their absence.
In the present case the complainant's pleader appears to have applied for issue of processes on the doctor but this application was not in proper form and was without any stamp and so it was not considered and then the prosecution counsel' did not invite the attention of the Court subsequently for the witnesses being summoned in this 323 I.P.C. case which was compoundable outside the Court. As the complainant tried to show that he was taking steps to produce witnesses for cross-examination on the date fixed, the learned Magistrate was prevented from summoning the witnesses at Government expense and so the Magistrate cannot be blamed for not summoning the witnesses for cross-examination.
7. On the date fixed i. e. on 1-7-1954. the complainant and his witnesses were found absent and the complainant's counsel instead of applying for adjournment for producing witnesses already examined-in-chief before charge for further cross-examination applied for time for producing new witnesses. Section 256 Cr. P.C. runs as follows:
256 (1) If the accused refuses to plead, or does not plead, or claims to be tried, he shall be required to state, at the commencement of the next hearing of the case or, if the Magistrate for reasons to be recorded in writing so thinks fit, forthwith, whether he wishes to cross-examine any, and, if so, which, of the witnesses for the prosecution whose evidence has been taken. If he says he does so wish, the witnesses named by him shall be recalled and, after cress-examination and reexamination (if any), they shall be discharged. The evidence of any remaining witnesses for the prosecution shall next be taken, and, after cross-examination and re-examination (if any), they also shall be discharged. The accused shall then be called upon to enter upon his defence and produce his evidence.
(2) if the accused puts in any written statement, the Magistrate shall file it with the record.
8. A perusal of the section makes it clear that unless the witnesses already examined before the framing of the charge are further cross-examined under Section 256(1), Cr. P.C. no new witnesses should be examined. The complainant's counsel in this case wanted to examine new witnesses without producing the complainant and the witnesses already examined before the framing of the charge for cross-examination by the accused which was not legal. As such the learned Magistrate could not be deemed to have acted in any way against the provisions of Section 256, Cr. P.C.
9. In - 'Sadek Mahammad. Ahmad Hasan v. Jyotish Chandra' AIR 1948 Cal 83 (B), it has been laid down that where, after a charge has been framed, the complainant and his witnesses are absent on the day fixed for their cross-examination it is not proper to discharge the accused as, there is no provision for discharge of an accuaed after charge had been framed. The proper order to pass is
As the prosecution witnesses are absent and cannot be cross-examined their evidence in exa-mination-in-chief should be expunged and as there is no evidence in the case the accused is acquitted.
10. The learned Magistrate in the present case has passed an order acquitting the opposite parties exactly in the terms mentioned above and so it cannot be said that he has passed any irregular order of acquittal in this case. I am, therefore, of opinion that, on both the grounds mentioned by the learned District Magistrate in his referring order, interference with the order of acquittal is not justified.
11. It is only in a very rare case of a serious kind where there has been a serious miscarriage of justice that the High Court interferes with an order of acquittal. The present case is a petty one and it has been hanging on in various Courts for more than a year. There is no doubt that in - 'Emperor v. Ram Charan' AIR 1943 Oudh 157 (C), where the complainant had made an application praying that another date might be fixed so that witnesses to be cross-examined might be summoned it was held that the order of acquittal was not justified but in the present case no such application had been given by the complainant & so this ruling does not apply to the case before me.
In - 'Dhuri Bahadur v. Hori Lal' AIR 1934 All 714 (D), it v. as laid down that ordinarily the District Magistrate should not make a reference to the High Court from an order of acquittal nor should the High Court interfere on such reference. But where the trial Court judgment was full of surmises and special pleadings re-trial can be ordered. In the present case the trial Court judgment does not contain any surmises or special pleadings
12. In - 'Mangli Prasad v. Budh Sen' AIR 1S49 All 264 (E), it has been held that the mere fact that the reasons given by the trial Court for doubting the evidence of certain witnesses do not commend themselves to a superior Court is no ground for Interfering with an order of acquittal. I have already shown above that the learned Magistrate did not commit any illegality or serious irregularity in this petty case of marpit and as the parties have been sufficiently harassed for more than a year in this litigation, I do not think this is a fit case in which re-trial should be ordered in revision.
13. The reference is, therefore, rejected.