T.N.R. Tirumalpad, J.C.
1. In this revision what the petitioner wants is that the order of the First Class Magistrate, acquitting the respondents under Section 247 Cr.P.C. should be set aside and that the Magistrate should be directed to get on with the trial of the case.
2. This case has had a very chequered] career. The occurrence took place on 13-4-54 and the respondents and some others were said to have committed house trespass and assaulted the petitioner and his son. The F.I.R. was lodged on 15-5-54 and in the trial which followed the Magistrate convicted the respondents under Sections 323 and 448 I.P.C. There was an appeal to the Sessions Court and the appellate Court 'remanded the case for a retrial'. The appellate Court did not consider the oral evidence at all. It felt suspicious regarding the delay in the filing of the F.I.R. and was not satisfied with the explanation of the petitioner that the I.O. refused to accept the F.I.R. earlier without a medical certificate. The I.O. was not examined in the case and the appellate Court felt that the I.O. should be examined. Again, the appellate Court said that the examination of the accused under Section 342 was unsatisfactory. But it did not say in the judgment how or why it was unsatisfactory. Any way, it remanded the case for retrial. As the defects pointed out were non-examination of the I.O. and the unsatisfactory examination or the accused under Section 342, the retrial could have been confined by the appellate Court to that portion of the trial. Evidently, the appellate Court did not bestow much thought on it and sent back the whole case for retrial on 6-3-57.
3. It was already a very old case and one would have expected the Magistrate to give top priority to its disposal. But the case dragged on in the Magistrate's Court until 19-12-58 and all that was done during this period of more than 11/2 years was that P.W. 1 had just been examined-in-chief. I cannot compliment the Magistrate as far as his conduct of this case is concerned. On 19-12-58 an application was filed for adjournment on the ground that the Court Inspector who wag to conduct the prosecution was ill. But the learned Magistrate appears to have suddenly realised that the case was a very old one.
He concluded from the application for adjournment that there was no earnestness on the part of the prosecution. Illness of the prosecutor certainly did not show want of earnestness. The Petitioner's complaint is that he was waiting in the police office and hence he happened to be absent from Court. The Magistrate has mentioned in his order that no P.Ws. were present and no ground was mentioned why they failed to turn up. One fails to understand how any ground can be shown when the Court Inspector who conducted the prosecution was himself absent due to illness.
4. What the learned Magistrate evidently did not understand is that Section 247 Cr.P.C. did not apply to the case at all. He has stated in his order that the provisions of Section 247 Cr.P.C. were truly attracted to the case. Section 247 applies only to complaint case and not to cases charge-sheeted by the police. In such cases, it is Section 249 which would apply, and the learned Magistrate was therefore wrong in having dealt with the case under Section 247 Cr.P.C. Ha was wrong to have dismissed the case for default of the complainant and to have acquitted the accused. At best his order can be treated as only one under Section 249 of stoppage of the proceedings without pronouncing any judgment either of acquittal or conviction. The learned Magistrate has certainly committed an error in passing the order under Section 247 and not under Section 249, His order will therefore be treated to be one under Section 249 and the respondents will not be deemed to have been acquitted.
5. The question now is whether I should interfere with the release of the accused persons and whether I should order a further trial of this case. In deciding that question, I cannot lose sight of the fact that it is now more than 6 years after the occurrence took place. The accused persons have been sufficiently harassed by having to face the Criminal charge during all this period and I should think that even if they were guilty of the offence they have been sufficiently punished. I must also have regard to the fact that the State which was conducting the prosecution has not thought it necessary to move this Court in Revision for further trial;
Even if we treat this as an acquittal, the State could have come up under Section 417 by way of an appeal against the acquittal. They have not thought fit to do so, probably for the reason that so many years after the occurrence, it was not necessary to rake up the matter further. No doubt, the petitioner is the aggrieved party. The trial of a criminal case is not for the vindication of the grievance of the aggrieved party against the accused persons but to see that justice is meted out to a person accused of an offence. It the State, who were prosecuting the case do not consider that in the interest of justice there should be a further trial of the case, the Court certainly would not revive the case at the instance of an aggrieved party in a revision petition.
6. For the above reasons, I do not consider it necessary in this revision petition to order a further trial. I would only change the order of acquittal of the respondents under section and convert it into one under Section 249 Cr.P.C.which would not amount to acquittal, but merely to stoppage of proceedings and the release of the accused persons.