1. This is a reference by the Sessions Judge of Tellicherry under Section 438(1), Cr. P.C., asking this Court to set aside the order of acquittal passed in C. C. No. 92 of 1952 on the file of the Sub-Divisional Magistrate, Kozhikode. The accused in the case was the third defendant in O. S. No. 802 of 1943 on the file of the District Munsif of Nadapuram. On 3-3-1951 the suit was decreed against him. Immediately after the judgment was pronounced, the accused behaved in a very disorderly manner and used abusive and filthy language against the District Munsif for having decreed the suit. The District Munsif was unable to proceed with the work on account of the disturbance created by the accused and with a view to take action under Section 480, Cr. P.C., he directed the Bench Clerk to ask the two peons on duty to apprehend the accused and have him brought before the court. But he could not be apprehended as he disappeared from the court very soon after the disturbance.
The District Munsif thereon drafted proceedings by recording the facts constituting the offence under Section 228, I.P.C., and forwarded it to the nearest Magistrate at Badagara who was a Second Class Magistrate for taking action against the accused. The case was transferred to the Additional First Class Magistrate, Tellicherry and subsequently to the Sub-Divisional Magistrate, Kozhikode. The Sub-Divisional Magistrate recorded all the evidence and acquitted the accused.
The grounds on which the Sub-Divisional Magistrate acquitted the accused are (1) that the District Munsif has not observed the formalities prescribed by Section 476, Cr. P.C., and recorded a finding that it was expedient in the interests of justice that an enquiry should be made into this offence, and (2) that the complaint should have been made to a First Class Magistrate having jurisdiction and not to a Second Class Magistrate. The reference is against that order of acquittal,
2. The question now is whether when the District Munsif makes a complaint under Section 482, Cr. P. C. he should follow the procedure laid down under Section 476, Cr. P. C. Section 480, Cr. P. C. is a special provision provided for dealing with offences of this nature in a summary manner. Under Section 480, the Presiding Officer of the court may, when the offence is committed in his view, detain the accused and before he rises for the day, sentence the accused to a fine of Rs. 200. But if for any reason, the Presiding officer thinks that the accused must be tried by some other Magistrate either for the purpose of inflicting a more severe punishment or for some other reason, then he will have to record the facts constituting the offence and the statement of the accused, if any, and forward the case to a Magistrate having jurisdiction to try the same. In such cases, I do not think it is incumbent on the Presiding Officer to follow the procedure laid down under Section 476. Cr. P. C.
In Emperor v. Ramalal Anand AIR 1940 Lah 233 (A), no doubt, it has been held that there is an option either to proceed under Section 476, Cr. p. C., or under Section 482, Cr. P. C., and that for proceeding under Section 482, the Magistrate must take cognizance of the offence under Section 480, Cr. P. C. With great respect to the learned Judge, I do not think that it is necessary that before filing a complaint under Section 482, the Presiding Officer should take cognizance of the offence. In this case, no doubt the statement of the accused has not been taken as the accused had immediately left the scene. As pointed out in High Court proceedings 23rd April 1879 No. 702, 2 Weir 604 (B), failure to take the statement of the accused does not by any means invalidate the proceedings. In the above case also the accused left the court at once and therefore a statement could not be taken from him. Our High Court has held that the discharge was not proper and ordered re-enquiry. The decision applies to the facts of this case. The acquittal of the accused on the grounds mentioned by the Sub Divisional Magistrate, cannot, therefore, be sustained.
3. It is true that the offence took place in 1951, but all the same, justice requires that the accused must stand a retrial and I order accordingly. If the court finds him guilty in the retrial, I have no doubt that in awarding the sentence on the accused the court will take into consideration the circumstance that he had already undergone one trial.