R.N. Mishra, J.
1. This is a reference made by the learned Sessions Judge. Bolangir, recommending the quashing of the order dated 28.4.1971, passed by the Sub-divisional Magistrate Nawapara acquitting the opp. parties of an offence under Section 447 of the Indian Penal Code on the ground of non-appearance of the complainant on the date fixed for argument.
2. The learned Sessions Judge noticed this irregularity during his inspection of the records of the Court of the Sub-divisional Magistrate and thereafter called for the records of the court in exercise of powers under Section 435 of the Code of Criminal Procedure and registered a case in his own court, being revision No. 11-K of 1971. In due course he made a reference to this Court under Section 438 of the Code of Criminal Procedure.
3. The opposite parties in spite of notice have not entered appearance. The learned Additional Government Advocate is heard in support of the referenece.
4. On a perusal of the order sheet of the criminal case it appears that originally there were three accused persons. Summons in the case could not be served upon Motiram Sahu. By order No. 21 dated 14.11.71 the case against Motiram was, therefore dropped and it proceeded against the remaining two accused persons. On 10.4.71 the prosecution evidence was closed. There was no defence witness. The case was directed to be posted on 26.4.71 for argument. Both sides were present on that day but the court was busy and. therefore the case was reposted to 28.4.71. On that day the complainant was absent so was his counsel. The learned Magistrate passed an order acquitting the accused persons for non-appearance of the complainant in exercise of powers under Section 247 of the Code of Criminal Procedure.
5. On 28th of April 1971 the complainant had nothing more to do. All the evidence in the case was before the court. Non-appearance of the complainant on such an occassion could not have brought about an order of acquittal under Section 247 of the Code of Criminal Procedure. The legal position in this respect is clear. It is equally clear that once evidence is placed before the Magistrate even if the complainant does not appear for argument, the learned Magistrate is bound to read the evidence and decide the case in accordance with law. There is no provision for recording an acquittal because the complainant or his counsel did not appear to argue the case. The case under Section 447 was to be disposed of according to the summons procedure. Chapter 20 of the Code of Criminal Procedure provides the procedure to bead-opted for trial of summons cases. Section 245 deals with disposal of such a case after the evidence has been recorded. It provides:
(1) If the Magistrate upon taking the evidence referred to Section 244 and such further evidence (if any) as he may, of his own motion cause to be produced, and (if he thinks fit) examining the accused finds the accused not guilty he shall record an order of acquittal.
(2) Where the Magistrate does not proceed in accordance with the provisions of Section 349 or Section 562, he shall, if he finds the accused guilty pass sentence upon him according to law.
Within the frame-work of this section, there is no provision for hearing of arguments though as a rule of practice arguments are heard and the courts even in suitable cases interfere where a case is disposed of without affording an opportunity of being heard to parties after the evidence has been recorded. The order of acquittal passed by the learned Magistrate under Section 247 of the Code of Criminal Procedure was thus wholly inappropriate and as such cannot be sustained.
6. The next question for consideration is as to whether the bar under Section 439(5) of the Code of Criminal Procedure would Stand against entertaining the reference. That sub-section provides:
(5) Where under this code an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed.
The complainant having lost in this case, it was open to him to file an appeal in this Court under Section 417(3) of the Code of Criminal Procedure. Admittedly no such appeal has been filed. The question for consideration is as to whether the bar indicated under the aforesaid statutory provision would stand against entertaining the reference. Before Narasimham C.J. in the case of The State v. K Lachman Murty : AIR1958Ori204 this question was mooted. There in a case instituted upon a charge sheet submitted by the police an acquittal was followed under the acceptance of a petition for composition. A reference was made at the instance of the State to set aside the acquittal. The accused challenged the maintainability of the reference by pleading the bar by Sub-section (5) of Section 439 of the Code. The learned Government Advocate as would appear from the judgment of the learned Chief Justice made an ingenious attempt to escape the provisions of Sub-section (5) of Section 439. Cr.P.C. by urging that:
(1) the High Court's interference in the present case would be at the instance of the Sessions Judge who made this reference under Section 438 Cr.P.C. and not at the instance of the State; and
(2) even if the reference made by Sessions Judge be held incompetent, this Court can suo motu look into the records and reverse the order of acquittal if it is found to be illegal.
The learned Chief Justice held as follows:
I am unable to accept this argument. It is true that the Sessions Judge has made this reference to the High Court under Section 438 Cr.P.C. But he was moved by the Public Prosecutor of Koraput on behalf of the State of Orissa. It was therefore at the instance of the State that the revisional jurisdiction of the Sessions Judge was invoked in the first instance and. through him, of this Court.
The language of Sub-section (5) of Section 439 does not warrant the inference that the bar of that Section applies only if the Court is directly approached by the party concerned and not when it is moved through the Sessions Judge or the District Magistrate as the case may be, even though the latter officer was requested to exercise his revisional jurisdiction at the instance of the party concerned. The question ultimately turns on this; who is the person who has set the provision of the Code in motion for the purpose of interfering with the order of acquittal? If that person happens to be one of the parties to the judgment, it is immaterial whether that party moved the High Court direct or through the Sessions Judge or the District Magistrate as the case may be.
The second point of the learned Government Advocate, if accepted, would render the provisions of Sub-section (5) of Section 439 practically nugatory, and in every case in which a revision is filed at the instance of a party in contravention of the provisions of the aforesaid sub-section, it will be open to that party to say that even though a revision at his instance is incompetent the High Court may in exercise of its powers suo motu interfere in revision inasmuch as the matter has been brought to its notice. To accept this argument would be to go against the very principle on which Sub-section (5) of Section 439 is based.
In this Court the same question came to be examined again in the case of Sukedeb Barik v. Panchan Barik : AIR1967Ori11 . His Lordship the present Chief Justice followed Narasimham, C.J. and relied upon a Full Bench decision of the Allahabad High Court in the case of Shailabala Devi v. Emperor A.I.R. 1933 Allahabad 678 : 1933 Cri.L.J. 1190 (FB). Sulaiman C.J. delivering the opinion of the Court said:
In the view that I take of the character of an application made by a third party, namely, that it is merely an information to the Court, there is not the same incongruity. If an application in revision by an accused is barred an application in revision by every one else made at his instigation would be equally barred. I do not think that the words at the instance of the party who could have applied' in Sub-section (5) of Section 439 at all imply that a third party can make such an application at the instigation of such an accused. It was necessary to use that expression so that the Crown or the complainant or the Court itself may not be debarred. But there would be nothing to prevent the Court from receiving information or acquiring knowledge from any source whatsoever and acting upon it and this information or knowledge can be derived from an application filed before the Court by any one else.
In the case of City Board, Mussoorie v. Sri Kishan Lal : AIR1959All413 Desai, J took the view that:
When the Sessions Judge or the District Magistrate calls for and examines a record and passes an order either under Section 436 or Section 437 or makes a report under Section 438, he acts in exercise of revisional jurisdiction and the proceedings held by him are by way of revision. The bar imposed by Sub-section (5) to Section 439 will therefore, apply in those proceedings and they cannot be entertained at the instance of a party who could have appealed, but has not.
A Bench of the Patna High Court in the case of State v. Alakh Narain Singh. : AIR1954Pat161 took the view that even a reference under Section 438, if it originated on an application by the State which was entitled to file an appeal, could be hit by Sub-section (5) of Section 439. On the other hand a Bench of the Saurashtra High Court in the case of State v. Kanbi Bashram Kanji. A.I.R. 1954 Saurashtra 129 : 1954 Cri.L.J. 1553 took completely a contrary view. A learned Single Judge in the case of Emperor v. Ram Deo A.I.R. 1942 Oudh 443 : (1942) 43 Cri.L.J. 763 took the view that even in the absence of an appeal, the Court had power to interfere in revision under Section 439.
7. While Courts have taken a different view on the scope of the bar under Sub-section (5) of Section 439 of the Code of Criminal Procedure, there can be no dispute that suo motu power of the Court is not at all affected by the bar in Sub-section (5) of Section 439. The words 'at the instance of the party who could have appealed' may have the extended meaning as given in : AIR1958Ori204 . But where the reference is at the instance of the Court not being moved by any party competent to appeal, the application of the bar under Sub-section (5) of Section 439 does not arise. In the facts of this case, the reference was made on the basis of information of the learned Sessions Judge during inspection. No party to whom the bar applied moved the revision application before the learned Sessions Judge. In the circumstances I would accept the contention of the learned Additional Government Advocate that the present reference does not suffer from the bar under Sub-section (5) of Section 439 of the Code. For the reasons recorded by me I would accept the reference, vacate the impugned order of the learned Magistrate dated 28.4.71 in 1. CC. Case No. 22 of 1968 and restore the complaint case to his file and direct the learned Magistrate to proceed with the case from the State the case was in on 26.4.71. The records be transmitted quickly for giving effect to the direction.