1. This is a reference made by the learned Sessions Judge of Upper Assam Districts under the provisions of Section 438, Criminal P.C., in the case of ore Kanaketuvar Bora v. Asatu Kalita and 4 Ors.
2. The complainant, Kanakeswar Bora, brought a complaint before the Senior Magistrate, Jorhat, in which he alleged that on 2nd February 1918, the accused persona (respondents in this case) at about 8 p. M. met him on the road and stole a money bag from his possession containing B9. SCO. The Senior Magistrate, Jorhat, transferred the case to the 2nd Class Magistrate, Jorhat, who examined the complainant on oath and sent the complaint to the Police for report; on 24th May 1918, on receipt of the report from the Police, the learned 2nd Class Magistrate issued process against the accused persons under Section 379 and 323, Penal Code. The accused apparently did not respond to the summons and the learned Magistrate issued warrants against them on 84th June 1948, and 20th July 1948. On 20th September 1948, the Magistrate examined the complainant and 4 of his witnesses; on 6th October 1948, he framed charges against the accused Asatu Kalita and Bopai Under Sections 379 and 426, Penal Code, and discharged the other accuse persona Under Section 253, Criminal P.C. On 23rd October 1948, the complainant's witnesses failed to appear and the case was adjourned to 20th November 1948, on which date also the complainant and his witnesses were absent. Tue learned 2nd Class Magistrate then proceeded to pass the following order
Complainant absent and no cause shown. The defence is ready. The P. Ws also are absent, and are not presented for Dross-examination, and no cause is shown for the ab.-eno. Under the circumstances, I do cot find the accused guilty Under Sections 379/426, renal Code, and I acquit the accused Under Section 258 (1), Criminal P. C
3. The learned Sessions Judge points oat that the order of the learned 2nd Class Magistrate acquitting the respondents cannot be maintained in the absence of a judgment in accordance with the provsions of Section 367, Criminal P.C., holding that there were not sufficient reasons to convict tho respondents. We think the procedure adopted by the learned 2nd Class Magistrate was not warranted by law, and that if the complainant and his witnesses were absent on 20th November 1918 the learned Magistrate should hava secured their presence by ooerciTa process; thfiir absence was not a ground for acquitting the accused.
4. We accordingly set aside the order of acquittal passed by the learned Magistrate and remand the case for retrial from the stage at which the learned Magistrate committed the particular illegality. We direct the learned Magistrate to secure the presence of the complainant and his witnesses for further cross-examination after charge by such meaDS ae are authorised by law, and thereafter to call upon the respondents to lead evidence in their defence, if they bo desire, and after hearing arguments, to dispose of the case according to law, bearing in mind the provisions of Section 367, Criminal P.C.