1. This revision by the accused is directed against the order passed on November 8, 1984, by the Judicial Magistrate, First Class 6th Court, Nagpur, in Criminal Case No. 839 of 1982.
2. The facts leading to the present revision are as under. The non-applicant No. 1 the Income-tax Officer, filed Criminal Case No. 839 of 1982 against the present applicants for an offence punishable under section 277 of the Income-tax Act 1961. After registration of the complaint, process was issued to the accused and the case was adjourned from time to time. On February 2, 1984, neither the complainant nor his pleader was present and the trial court passed the following order :
'Complainant is absent though repeatedly called out till 1.45 p.m. The council is also absent though repeatedly called out till 1.45 p.m. Accused No. 2 with his counsel Accused No. 3 had filed an application for exemption and it is allowed as no say is given. Case is dismissed.'
3. After the dismissal of the complaint case the non-applicant No. 1 filed an application for restoration of the complaint which was registered as Miscellaneous Criminal Case No. 32 of 1984. The said application was filed on February 27, 1984 i.e., 25 days after the complaint case was dismissed. The trial court issued notice to the accused and on hearing the counsel for the complainant as well as the accused and relying on a reported ruling in : AIR1950Bom10 (In re Wasudeo Narayan) as well as as an unreported ruling in Criminal Revision Application No. 43 of 1980 Income-tax Officer v. Sampat Prasad directed that the earlier order of dismissal of complaint is reviewed, the same is set aside and the original Criminal Case No. 839, of 1982 is restored and taken on board and be disposed of according to law.
4. It is this order dated November 8, 1984, which is impugned by the accused.
5. Shri S. G. Ghate, advocate, appears for the applicant/accused. Respondent No. 1, the Income-tax Officer, is represented by Shri M. G. Bhangde, advocate. The State is represented by Shri V. V. Naik, Asstt. Govt. Pleader.
6. With the assistance of the counsel, I have gone through the record and papers of the impugned order. It was contended on behalf of the applicants that the trial judge erroneously placed reliance on the two rulings cited above, inasmuch as the case he was dealing with, was a summons case, while the rulings cited are relevant to a warrant case. Under section 362 of the Criminal Procedure Code, unless otherwise provided by the court or by any other law for the time being in force, no court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error. In the instant case, according to the applicant/accused, the trial judge had passed an order under section 256 of the Criminal Procedure Code which has resulted in the acquittal of the accused and the said order, being a final order, could not be reviewed by him.
7. Shri M. G. Bhangde, for the complainant-Income-tax Officer, urged that as per the cited rulings, an order dismissing the complaint in default is not a substantive order in concluding the innocence or guilt of the accused and thus the power under section 362 would not become operative.
8. It was, however, fairly conceded by Shri Bhangde for the complainant that the present complaint case under section 277 of the Income-tax Act 1961, was triable as a summons case, inasmuch as the imprisonment provided for the said offence, according to law then prevailing, was up to a maximum period of two years.
9. No doubt, it has been held by Jamdar J. of this High Court in Criminal Revision Application No 43 of 1980 decided on August 6, 1980, that in a warrant case when on a day fixed for hearing, the complainant is absent and the offence may lawfully be compounded, the Magistrate may, in his discretion, notwithstanding anything contained hereinbefore, at any time before the charge has been framed, discharge the accused and that such order of dismissal of complaint case in default resulting in discharge of the accused is not a final order. However, the implication of the said ruling as well as of the ruling in In re Wasudeo Narayan, : AIR1950Bom10 , goes to show that both these cases pertained to warrant trials and of discretionary discharge of the accused. The provisions of dismissing a summons case in default of the complainant are available under section 256 of the Criminal Procedure Code. The relevant provision is as follows :
'256. (1) If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day :
Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispose may dispense with his attendance and proceed with the case.'
10. The procedure differs for a summons case and a warrant case, inasmuch as a summons case deals with minor offences, where punishment does not go beyond two years of imprisonment whereas a warrant case relates to more serious offences where punishment goes beyond the period of two years. In a summon case, if the complainant is absent, the provision gives a mandate to the Magistrate to acquit the accused unless, for some reason, he thinks it proper to adjourn the hearing of the case to another date. This mandate is contrary to the provision under section 249 relating to the absence of a complainant in a warrant case. In a warrant case, in the absence of the complainant, the Magistrate may, in his discretion, at any time before the charge has been framed, discharge the accuse. A plain reading of section 256, Criminal Procedure Code, of the summons case goes to show that the Magistrate has only two alternatives before him in the event of the absence of the complainant; (1) That he shall acquit the accused, and (2) That for some reasons which he thinks proper, he may adjourn the hearing.
10. Once he elects the first option, he had no alternative but to acquit the accused and acquitting the accused, in my opinion, is a final order.
11. The trial court in complaint cases, either under warrant procedure or summons procedure, is prone to passing order of dismissing the case in default. In my opinion, that is not the correct way of writing an order, either under section 249, or under section 256 of the Criminal Procedure Code. In a warrant case, in default of the complainant, the correct order would be to discharge the accused. In a summons case, in default of the complainant, the correct order under section 256, Criminal Procedure Code, would be to acquit the accused.
12. The order of the trial court in paragraph 5 shows that the trial court was proceeding on the footing that the original Criminal Case No. 839 of 1982, which was dismissed in default was a warrant trial. An extract of para. 5 show as follows :
'I have perused the original record of the Criminal Case No. 839 of 1982. I have persued the order passed by my learned predecessor on 2-3-1984. The said order is admittedly under section 249 of the Criminal Procedure Code. I think that relying upon the above observations of the Lordship of our High court, the said order can be reviewed on sufficient reasons shown by the complainant....'
13. It is in the light of these presumptions that it was a warrant trial that he applied the ratio of the judgment in Criminal Revision Application No. 43 of 1980 by our High Court as well as of In re Wasudeo Narayan, : AIR1950Bom10 .
14. The said presumption is erroneous, as admittedly the offence under section 277 was punishable with a maximum imprisonment for two years and was, therefore, triable as a summons case. The provisions of section 256, Criminal Procedure Code, apply to this case and in this case, in default of the complainant, the accused stands acquitted. It is therefore, a final order and the same cannot be reviewed as per the bar imposed by section 362, Criminal Procedure Code. The trial court's order, ordering restoration of the complaint and reviewing the earlier order, is, therefore, totally illegal and liable to be quashed and set aside. A distinction has to be made by the courts below in respect of a final order under section 256 and one of the discharge under section 249, Criminal Procedure Code.
15. In the result, therefore, Criminal Revision Application No. 16 of 1985 is allowed. The impugned order is quashed and not set aside and the original order of dismissal of complaint resulting in the acquittal of the accused is confirmed.