1. This reference under Section 438 of Crl. P. C. is by the Sessions Judge, Dharwar. By an order made in Criminal Revision Petition No. 56/72, he has recommended to this Court that an order made by the J.M.F.C., Dharwar in Misc. Application No. 83/72 be quashed. The said application had been made by the Complainant in C. C. No. 1571/71 requesting for the restoration of the complaint after setting aside the order of dismissal for default and acquitting the accused.
2. The complaint was one under Section 323, I.P.C. and was triable by following the procedure prescribed under Chapter 20 of Cr, P. C. relating to the trial of summons cases. It would appear that on 18-1-1972, when the case was called on for hearing, the complainant was absent. The learned Magistrate thereupon kept by the file and called the case later at about 1-20 P.M. Finding that the complainant was still absent, he made an order acquitting the accused. Nearly a month thereafter on 19-2-72 the complainant presented the Misc. Application No. 83/72 requesting for the revival of the complaint
In the said application he tried to show cause for his absence on the previous date of hearing. The learned Magistrate after hearing both the parties restored the complaint, after setting aside the order of acquittal. Aggrieved by this order the accused preferred a Crl. R. A. No. 56/72 before the learned Sessions Judge, Dharwar, The learned Judge came to the conclusion that the order of the learned Magistrate was clearly without jurisdiction, in that he had no power to set aside the order of acquittal. He thereupon made the present reference to this Court
3. If 4s clear from the record that the order dismissing the complaint and acquitting the accused had been made pursuant to the provisions of Section 247 Cr. P. C. occurring in Chapter 20 thereof, which deals with the procedure to be followed by the Magistrate in trial of summons cases. That the learned Magistrate had no such power would be clear from the enunciation of this Court in Ranga Setty v. Kunna Setty 1960-38 Mys LJ 1033, the passage reads thus:
We would, however, like to add that the discretion whether to adjourn or not under Section 247 of the Code of Criminal Procedure, has to be exercised with great care and caution. The statute itself contains the reason why such care should be exercised. In the first instance, the order is passed in the absence of a person who is vitally affected by it. Secondly, the consequences of the order are serious and once that order is made, it is no longer in the power of the Magistrate to correct the mischief even if he subsequently discovers that the complainant had very good reasons for his absence. The order being one of acquittal, the complainant is prevented from taking fresh proceedings in respect of the offence complained by him. Ordinarily, a first party in legal proceedings may be expected to be careful and not negligent of his own interest. The section no doubt uses the words 'shall acquit'. But, that compulsion arises after the Magistrate has exercised his discretion and come to the conclusion that there are no valid grounds for adjourning the case. This further emphasises the need for exercising great caution and examining the position very carefully before Magistrates proceed to acquit the accused in private complaints under the provisions of Section 247, Cr. P. C.
4. In the light of the above enunciation, the reference made by the learned Sessions Judge must be accepted. The order made by the J.M.F.C., Dharwar, in Misc. Appln. No. 83/72 is hereby quashed. It follows therefore that the earlier order of acquittal made in C. C. No. 1571 of 1971 stands.