1. This is an application for revision of an order of the Bench Magistrates of Aonla dated the 3rd October, 1924.
2. The facts of the case are as follows : On the 31st June, 1924, Bhimmi, the applicant in this case, filed a complaint against Pershadi, under Section 352 and Section 323 of the Indian Penal Code. The complaint was instituted in the Court of the Sub-Divisional Magistrate of Aonla. The Magistrate recorded the evidence of some witnesses under Section 202 of the Code of Criminal Procedure. He then transferred the case to the Court of the Banch Magistrates of Aonla for disposal. The Bench. Magistrates examined the accused and then asked the parties to adduce all their evidence. The complainant examined a certain number of witnesses and the accused also examined a certain number of witnesses. The hearing of the case was concluded on the 24th September, 1924. On that date they passed an order that judgment would be delivered on the 30th September, 1924. They directed the accused to be present on that date. On that date it was discovered that the complainant was present but the accused was absent. Then the Bench Magistrates ordered the complainant to file a process fee to secure the attendance of the accused on the 3rd October the complainant did not file the process fee required. The case came on for hearing on the 3rd October, 1924. The following order was recorded on the order sheet on that date:
The case came up for hearing. The complainant has not filed process fee in spite of An order to this effect. It is hereby directed that the case be dismissed for default of prosecution and Pershadi accused be acquitted and the papers be consigned to records.
3. Against this order Bhimmi, the complainant, has filed this application for revision. This application has been sent to this Court for disposal.
4. Pershadi has entered appearance in this Court in response to the notice issued to him. It is contended on behalf of the applicant that the order of the Court below was absolutely illegal. It is contended that the Magistrates ought to have recorded a judgment in this case and if, as they found, the accused was absent on the date fixed for delivery of judgment, they ought to have secured the attendance of the accused in the manner laid down in the Criminal Procedure Code. On behalf of Pershadi it is contended in reply that the order of the Court below was not illegal.
5. The question is, if the order of the Court below was illegal. Now there can be no doubt that the 30th September, 1924 was fixed for pronouncing the judgment in this case. The Magistrates ought to have recorded a judgment and if, as they found, the accused was absent, they should have enforced his attendance in a manner laid down in the Code of Criminal Procedure. They should have cancelled his bonds and should have issued a warrant for his arrest. But the Magistrates did not do this. They did not record any judgment. In my opinion they ware not justified in ordering the complainant to file a process fee to enforce the attendance of the accused. Such an order was absolutely illegal. The complainant is generally ordered to file process lea when he wishes that a process should issue to the accused to attend the Court and answer the charge in a summons case as this particular case happened to be. But it is nowhere laid down in the Code that the complainant must file a process fee to enforce the attendance of the accused not on the date of trial nor on the date of arguments, but on the date fixed for delivery of judgment. It is thus clear that the order directing the complainant to pay process fee is absolutely unwarranted by law.
6. It follows then that the order dismissing the complaint for default of prosecution of the complainant is equally unwarranted by law. And the order of acquittal also is equally invalid.
7. It is contended on behalf of Pershadi that this Court cannot take cognizance of this petition for revision as it is a case of acquittal and the only Court that can revise an order of acquittal is the Hon'ble High Court. But this is not a case of acquittal on merits. In fact the order of acquittal is in the eyes of law no order at all. Under Section 435 of the Code of Criminal Procedure this Court is entitled to send for the record of a case and to examine whether the order passed was improper and illegal. As I have already said, the order is absolutely illegal. It cannot be allowed to stand and since it is not an order of discharge or an order under Section 203 of the Code of Criminal Procedure; mo action can be taken under Section 436 of the Code of Criminal Procedure. I am, therefore, of opinion that this is a fit case to report to the Hon'ble High Court with a recommendation that the order in question be set aside and the case sent back to the Beach Magistrates for recording a proper judgment in the case and then to pronounce it. The record shall be sent through the District Magistrate to the Bench Magistrates asking them to submit such explanation as they like in regard to the order pissed by them. On receipt of the explanation the record shall be submitted to the Hon'ble High Court for such action as the Hon'ble Court thinks fife.