1. This is a reference by the learned District Magistrate, Nagaur.
2. On 29th March, 1946 Chandar Dass, complainant, filed a complaint against Malla and four other persons for offences under Sections 426 and 447, Indian Penal Code. The allegations were that the accused entered into his field and demolished a mud-wall, and thereby deprived the complainant of the benefit of the flow of the village water in his field during rains. The accused denied the charge. The case was tried as a summons case by the Third Class Magistrate, Didwana. Ultimately an order of acquittal was recorded on 26th October, 1950 on the complainant's absence on that day. The complainant made an application to the District Magistrate, Nagaur, on 8th December, 1950 for moving the Government to file an appeal against that order. The learned District Magistrate has made this reference on 30th April, 1951.
3. He has mentioned that he took charge on the 22nd April, 1951 and the time left for an appeal was insufficient. According to thelearned District Magistrate all the evidence for the parties had been recorded by 14th April, 1948 and thereafter several adjournments were granted as the Court wanted to examine the Havaldar of the village as a Court witness. This Havaldar had prepared a plan under instructions of the Magistrate. The witness attended the Court more than once, but could not be examined. In the opinion of the learned District Magistrate, the complainant was not at all to blame for the delay in this case ana his single absence from the Court on 26th October, 1950 should not have been made ground for dismissal of the complaint and a quittal of the accused. While it is true that the complainant was not to blame for the delay in the disposal of the case in the trial Court, the fact remains that the trial Magistrate has passed an order which cannot be said to be illegal. Under Section 247, Criminal Procedure Code, which is found in the Chapter dealing with the trial of summons-cases, the Magistrate has been empowered to acquit the accused if on any date of heating to which the case may be adjourned the complainant does not appear, unless for some reason he thinks proper to adjourn the hearing of the case to some other day. The general rule is to acquit the accused whereas an adjournment is an exception. While there is no doubt that the High Court in the exercise of its revisional powers can reverse such an order and direct a retrial of the accused it has been laid down in numerous cases that 'except in the most serious cases and in the event of grave miscarriages of justice no High Court shall interfere in revision in such matters' 'PAHALWAN SINGH v. SAHIB SINGH', AIR 1921 All 76. In a recent case of the Allahabad High Court 'MANGLI PRASAD v. BUDH SEN', AIR 1949 All 264 the view taken by Stuart J. in the earlier case was upheld. It is not necessary to multiply cases.
4. The fact that the order of acquittal was not based on the merits makes no difference. As observed by Puranik, J. in 'EMPEROR v. LAXMI PRASAD1, AIR 1940 Nag 357, 'the acquittal under Section 247, Criminal P. C. though not an acquittal on the merits has the force of a complete acquittal for all purposes'. Where an accused is acquitted, a valuable and substantial privilege accrues in his favour and it is not proper for a Court to interfere with the acquittal simply because the complainant thinks that the accused has committed an offence and the offence will remain unpunished. Where the Government does not choose to file an appeal but a reference is made for interference in an order of acquittal, the High Court will not interfere unless there be a radical and incurable irregularity or a complete disregard of the law and procedure or a manifest injustice has occurred which has got to be cured.
5. As observed above, the order is not illegal. It may be that the Magistrate should have decided the case on the merits when all evidence except that of a formal witness was on record, or it may be that steps should have been taken to procure the attendance of the formal witness and the case adjourned for that purpose. These are however not matters which would justify any interference in revision at this stage. The case is of a petty nature and while the complainant may not be liable to blame, the case has been dragged on for sucha long time owing to dilatory procedure adopted in this case that it would not be just todirect a further trial. The reference is, therefore, not accepted.