C. Jagannadhacharyulu, J.
1. This is an appeal filed under Section 417(C), Criminal P.C., by the complainant in Criminal Case No. 1 of 1962 on the file of the Magistrate Second Class (Transport), Manipur, against the acquittal of the first respondent for an offence under Sections 126 and 127 of the Motor Vehicles Act.
2. The case of the appellant is that he is the owner of Motor Vehicle Jeep No. MNS, 1368, that on 18-6-1961 it was hired by the Police to take some Police personnel to Khoubum camp from Imphal, that the driver M. Ibungohal Singh, was accompanied by a conductor Kh. Senapati Singh, that the jeep reached Khoubum on 18-6 1961, that in the morning of 19-6-1961 when the driver and the conductor were taking tea at a canteen, the first respondent who is a Police Officer, entered into it and drove it, that he damaged the gear box and different parts of the jeep in such a way that it became unfit for use and that after repairing the Vehicle at a cost of about Rs. 1,000 the Vehicle was brought back to the complainant appellant on 2-7.1961. It is also the case of the appellant that on 28-6.1961, the matter was reported to the Superintendent of Police, Imphal, that on 14-8-1961 the drives lodged a complaint is Criminal Case No. 1 of 1961 before the Transport Magistrate but that the 1st respondent was 'discharged' on 15.8-1962 due to the absence of both the parties. The appellant filed Criminal Case No. 1 of 1962 on 14-4-1962 against the first respondent under Sections 126 and 127 of the Motor Vehicles Act and against M. Ibungobal Singh under Sections 426, 84 and 109, I.P.C.
3. The Magistrate took the case on file under Sections 126 and 127 of the Motor Vehicles Act, because he could try cases only under the said Act. The appellant examined himself as P. Ws. 1 and 4 witnesses (Khongbantabam Senapati Singh, Moirangthem Gopal Singh, Chabungbam Iburgohal Singh and Haorougbam Amujao Singh) as P. Ws. 2 to 5. The first respondent filed written statement denying the offence. The Magistrate discussed the evidence and held that though there was a probability that the first respondent might have entered into the jeep, when it was parked, and drove it, still there is no evidence to substantiate the offence and that, therefore, the first respondent is entitled to the benefit of doubt. The learned Magistrate did not pass any order against the second accused, as he was said to have absconded.
4. The points which were argued and which arise for determination are:
(i) whether the first respondent is guilty of the offences under Sections 126 and 127 of the Motor Vehicles Act.
(ii) whether the present case is not mainnable and is barred by Section 403, Criminal P.C. and
(iii) whether the Magistrate was correct in dropping the proceedings against the driver --Meitram Ibungohal Singh.
5. Point No. (i):
So far as the complainant appellant (P. W. 1) is concerned, he had no personal knowledge because he was not present in the jeep either on 18.6-1961 or on 196.1961, when the first respondent was alleged to have driven the jeep. P. W. 2 (Ehongbantabam Senapati Singh) deposed that on 19-6-1961 at about 5.80 a.m. when he and the driver were about to return to Imphal from (a canteen) in Khoubum, he heard the sound of starting of are vehicle from inside the military barracks, that he came out and found that the jeep was not in front of the barrack but that he did not know who drove the jeep, that ha and the driver went and saw the jeep at a distance of about half a furlong from the military barracks, that the first respondent told them that the jeep was unfit for being driven forward, that the driver brought it back with the back gear to the military bar. racks and that the driver also found that there was some defect in the gear. It is also his evidence that the driver was sent to Imphal for bringing some parts of the gear. He proved Ext. A/1, copy of the application dated 28-6-1961 filed by him before the Superintendent of Manipur about the damage caused to the vehicle. He further stated that when he accused the first respondent that be caused the damage to the vehicle, the first respondent denied having caused any damage to it. It is also his evidence that, after the gear was repaired, be and the driver returned to Imphal, In the cross-examination he stated that he did not know what was mentioned n original of Ext. A/1 but that he wrote the original after consultation with P. W. 1 (R. E. Manisara Singh). He admitted that he did not see the person who actually drove the vehicle. So, he too had no personal knowledge about the person who drove the jeep.
P. W. 3 (Moirangthem Gopal Singh) stated that when he was proceeding in his jeep to wards Imphal he met a driver who carried a sack containing some spare parts of a motor vehicle, that P. W. 8 learnt that he was carrying some parts of a gear box for being repaired in Imphal, that the said driver got down at Keisampat Junction and that P. W. 3 did not know anything further as to what had happened subsequently. P. W. 4 is Chabungbam Ibohal Singh. He deposed that he was working as a Pharmacist of Manipur Rifles, that he was residing at the Canteen of Khoubam camp, that he found that the jeep was in an unserviceable condition but that he did not know to whom the jeep belonged, that he did not know the driver of the jeep, that he did not know the registration number of the jeep and that he did not know, even the conductor, P. W. 5 is Haorongbam Arojao Singh. He stated that he has a mechanic running a Motor Workshop in Imphal and that he inspected the jeep in question and issued Ext. A/7 (certificate). This is all the evidence on record. This evidence certainly cannot bring home the guilt of the first respondent.
6. The first respondent was not examined. He filed written statement denying his guilt. The contention of the learned Counsel for the appellant is that the Magistrate went wrong in all -wing the first respondent to file a writ, ten statement. The case is a summons case triable according to the provisions of Chapter 20 Cr. P.C. Under Section 245, Cr. P.C. it is not mandatory for the Magistrate to examine the accused. Sub-section (1) of Section 215 lays down that after, taking the evidence referred to in Section 214, Cr. P.C. and such further evidence (if any) as he may, of his own motion, cause to be produced, he may examine the accused. If he finds the accused to be not guilty, be should record an order of acquittal. Under Sub-section (2) if he find the accused guilty, then he should pass sentence upon him according to law. So, Section 245, Cr. P.C., gives discretion to Magistrate either to examine or not to examine an accused under Section 342, Cr. P.C.
Vide AIR Commentaries on Cr P.C., 6th edition, Vol. II at pages 2264 and 2269, wherein it was mentioned that there is consensus of opinion between the High Courts of Madras, Andhra Pradesh and the erstwhile Hyderabad that Section 842 Cr. P.C. does not apply to summons cases. Vide Ponuswami Odayar v. Ranaswatni Thathan AIR 1924 Mad. 15 (FB) Parisa Raghavulu v. Borra Kotayya AIR 1956 Andhra 51, Kaliappan v. Kaliappan AIR 1961 Mad 854 and K Vidyanand v. Erramma AIR 1961 And Pra 391. Though, the Supreme Court held in Sidheswar Ganguly v. State of West Bengal AIR 1958 8 C 143 that there is no provision in the Cr. P.C. under which a written statement can be filed by an accused, the Supreme Court held in a subsequent case in Harbhajan Singh v. State of Punjab AIR 1966 SC 97 that the Filing of written statement by an accused person need not always be deprecated. So the conduct of the Magistrate in allowing the first respondent to file the written statement does not vitiate the proceedings,
7. For the above reasons I find point (i) in the negative.
8. Point No. (ii):
It is common ground that the driver of the Vehicle Neitram Ibungohal Singh filed Criminal Misc. Case No. 1 of 1961 on the file of the Magistrate Second Class (Transport) under the same Sections 126 and 127 of the Motor Vehicles Act against the first respondent but that he was 'discharged' on 15-8.1962 due to the absence of both the parties. The contention of the learned Counsel for the first respondent is that the dismissal of the complaint petition amounted to an acquittal under Section 247, Cr. P. C and that a second complaint for the same offence is not maintainable under Section 403, Cr. P.C. His contention is well founded. Under Section 247. Cr. P.C. when a complainant is absent, the Magistrate shall acquit the accused, unless for some reason he thinks proper to adjourn the hearing of the case to some other day. Therefore, even though the Magistrate wrote in the previous judgment that he ''discharged' the first respondent, the 'discharge' amounted to ac. quiltal according to law. There are also a number of authorities on this point to the same effect. Vide Public Prosecutor v. A. V. Ramiah AIR 1958 Andh Pra 892. Jai Prakash v. State AIR 1961 All 377 and State v. Chand Meah AIR 1961 Tripura 49. As such, the acquittal under Section 247 Cr. P.C. bars fresh trial of the first respondent for the same offences under Section 408 Cr. P.C.
Vide also Kanai Hizra v. Golap Hizra AIR 1958 Cal 197 Fula Bewa
v. Banamali Das AIR 1953 Orissa 257 Rasik Tatma v. Bhagwat Tanti AIR 1958 Pat 289 State v. Kuldip Singh AIR 1960 Punj 149 AIR 1961 Tripura 48; Indra Devi v. D.J. Sukh 1961 (1) Cri L.J. 589 (All), Thingujam Tona Singh v. Puvam Gulap Singh 1961 (2) Cr L.J. 507 (Mani) AIR 1961 All 877 and Haveli Ram v Municipal Corporation of Delhi AIR 1966 Punj 82. So, the second complaint filed by the appellant is not maintainable.
9. The learned Counsel for the appellant contended, firstly, that the former Criminal Misc. Case No. 1 of 1961 was filed by the driver against the first respondent under Sections 126 and 127 of the Motor Vehicles Act but that the second criminal case was filed not only under Sections 126 and 127 of the Motor Vehicles Act but also under Sections 426, 84 and 109 I.P.C. against the driver also and that, therefore, both the cases differ. But, a perusal of the records shows that the Magistrate Second Class (Transport) took the second case on file against the first respondent only under Sections 126 and 127 of the Motor Vehicles Act, as he had no authority to try oases punishable under the Indian Penal Code. So, both the cases relate to the same offences so far as the first respondent is concerned.
10. The second contention of the learned Counsel for the appellant is that the order or 'discharge' of the first respondent in the previous case does not legally amount to acquittal. He relied on Kuppagiri Atchamma v. Jakki Reddi Koti Reddi AIR 1955 Andhra 197 Dattu Pant v. Advya Chari AIR 1956 Hyd 127 Dasarath Singh v. State AIR 1956 Cal 260 and Pritam Singh v. State of Punjab AIR 1956 SC 415, relating to the trial of warrant cases under Chapter XXI of Criminal P.C. These rulings have no application to an order of 'discharge' wrongly passed under Section 247, Criminal P.C., in a summons case.
11. The third contention of the learned Counsel for the appellant is that the plea of 'autrefois acquit' was not taken by the first respondent in the lower Court and that he is not entitled to raise it in this appeal. But, as this is a legal plea, it can be taken even in the appeal Vide Emperor v. Menghraj Devidag AIR 1921 Sind 187 : All Bux v. Emperor AIR 1934 All 877 : Jagannath Rao Dani v. Emperor AIR 1985 Nag 23 and Thadi Narayana v. State of Andhra Pradesh AIR 1960 Andh Pra 1 (FB).
12. Fourthly, he argued that the 1st respondent and the driver colluded in the prior criminal case and that the 1st respondent managed to escape. But, it is the admission of the appellant that be got the case instituted. So, he must have been astute about his case.
13. For the above reasons, I find point No. (ii) against the appellant.
14. Point No. (iii):
So far as the driver is concerned, the Magistrate should have recorded the evidence in his absence under Section 512, Criminal P.C., as he has been absconding The case should have been revived against him after he was arrested and produced before him. So, the order of the Magistrate so far as the second accused is concerned is liable to be set aside. Finding accordingly.
15. In the result, the appeal fails and it is accordingly dismissed against the first respondent. The Magistrate is directed to record evidence against the driver -- Meitram Ibungohal Singh and keep the case as 'long pending case' under Section 512, Criminal P.C. and revive it after the absconding accused is arrested and produced before him.