1. This revision is against the order of the District Magistrate of Madurai and has been preferred by six accused of whom accused 1 to 4 are constables. A private complaint was laid for hurt and in that case the petitioners were the accused. The case was transferred from court to court and ultimately it came before the Sub Divisional Magistrate, Usi-lampatti, who took the complaint on file only as against accused 1 to 4 and transferred the case to the Sub Magistrate, Uthama-palayam for disposal. The complainant preferred a revision against the order of discharge of accused 5 and 6 to the District Magistrate.
He set aside the order of discharge and directed the case to be enquired into against accused 5 and 6 as well. The case was then transferred to the Bench Court at Uthamapalayam. Thus the case of accused l to 6 came up before this Bench court and copies of complaint were not filed for service on accused 5 and 6 as required by Section 204 (1) (B), Cr.PC On the ground that these copies had not been furnished, the Bench Court acquitted all the accused though in respect of accused 1 to 4 there was no such violation of the procedure. There can be no doubt that the order of acquittal is wrong.
In the case of accused 1 to 4 copies of the complaint had been filed, and in the case of accused 5 and 6 without copies of complaint being filed the Magistrate should not have issued summons and should have proceeded with accused 1 to 4 alone. Then having issued the summonses against accused 5 and 6 the complainant dragging on the case without filing copies of complaint, the only course that would be open was to dismiss the complaint against accused 5 and 6. However the Bench court passed an order of acquittal under rule 39 Criminal Rules of Practice & Section 245, Criminal P.C. against that order. A revision was preferred to the District Magistrate. The District Magistrate set aside the order on the ground that under rule 39, the court could only pass an order of discharge for not filing copies of complaint. I do not know wherefrom he got this idea, that under rule 39 In a summons case the court can only pass an order of discharge. Rule 39 is as follows:
39. There is no provision of law which sanctions the 'striking off' from the file of a court of a case in which an accused person has once appeared or been brought before the Court. All such cases are duly disposed of (a) by withdrawal when it is allowed by law, (b) by discharge, (c) by acquittal or conviction, (d) by committal, or (e) in the case of a lunatic, by the submission, of the prescribed report to Government. If .no evidence is produced against an accused person, not being a person incapable of making his defence by reason of un-soundness of mind he should after a reasonable time, be discharged. If there Is evidence, the court should proceed to discharge, acquit, contact or commit the accused.
Where the court is satisfied that an accused person has died, the charge abates and the case may be closed.
A reading of the rule will show that a case of this nature can be disposed of by withdrawal when it is allowed by law, by discharge, by acquittal or conviction or by committal etc. In a summons case there is no question of discharge. It is either acquittal or dismissal under Section 203 Cri P.C. The trial court therefore could have only either passed an order of dismissal under Section 203 or an acquittal under Section 245 in a summons case. It canned pass an order of discharge in a summons case. If it says that it discharges the accused in law it means acquittal. The District Magistrate has no jurisdiction to interfere with this order of acquittal by the Bench Court.
2. But it is argued that this order of acquittal by the Bench Court is illegal. I am in entire agreement with the argument that this order of) acquittal is not correct, so far as accused 1 to 4 are concerned. But the question is whether I should set aside the acquittal order. The offence was committed on 29th April 1956 and any order of retrial now will result in the case being commenced at the end of October 1957, that is, 11/2 years after the offence was committed. Even the offence that is alleged to have been committed is only under Section 323 IPC No doubt the persons concerned are police constables. Normally I would have set aside this order of acquittal and ordered retrial of these four accused but for the fact that in my opinion the ends of justice do not require that at this distance of time an offence of this nature should be enquired into by the Bench court.
3. The result is the revision is allowed and the order of the District Magistrate is set aside.