1. This is a reference made by the Sessions Judge of Rangpur recommending that the order passed by the Magistrate of Rangpur on 14-11-1946 reviving a case should be set aside. It appears that the complainant in that case, Sadek Mahammed Hasan filed a petition of complaint under Section 504, Penal Code, against Jyotish Chandra Pandit and another and on 5-8-1946 a charge was framed under Section 504, Penal Code. The case has been adjourned to 20-10-1946 and 30-10-1946 for cross-examination of prosecution witnesses. The Magistrate as well as the complainant were both absent on 29-10-1946 and the complainant was again absent on SO 10-1946 and when the Muktear for the complainant was sent for, he intimated that he had received no instructions from his client in the case. No witnesses were present either on 29-10-1946 or 30-10-1946 and no hazira had been filed on either of these two days. The Magistrate passed an order 'The accused persons are discharged under Section 253, Criminal P.C.'
2. The proper order that the Magistrate should have passed in such a case was that 'as the prosecution witnesses are absent and cannot be cross-examined their evidence in examination-in-hief should be expunged and as there is no evidence in the case the accused is acquitted.' There is no provision for discharge of an accused after charge had been framed. So the order of the learned. Magistrate was an order of acquittal. He had therefore no power to revive it on 14-11-1946 when the complainant came and filed a petition for revival. The case having been wrongly revived by the learned Magistrate the order of revival is set aside as we find that the order passed on 80-10-1946 was an order of acquittal and we do not disturb that order. The reference is accepted.
3. I agree.