S.K. Bhattacharyya, J.
1. This application by the complainant under Section 439 of the Code of Criminal Procedure is for setting aside the order of acquittal passed by Shri H. R. Das, Magistrate. 1st Class, Bongaon, in case No. C/530 of 1968. The facts of the case can be stated as follows:
On a complaint filed by the petitioner accused opposite parties were summoned under Sections 379/427/147 of the Indian Penal Code. The learned Magistrate to whom the case was transferred, after examination of the four prosecution witnesses framed a charge under Section 379 of the Indian Penal Code on 4-7-1971 against all the accused persons. Thereafter, the prosecution witnesses were cross-examined on different dates and the accused persons were examined under Section 342 of the Code of Criminal Procedure and they also led evidence and one defence witness was examined. The case was set down for further hearing on 24-8-1973 on which date the complainant did not take any step and was found absent. The learned Magistrate recorded an order to the effect that the complainant was not taking any interest in the proceeding and, accordingly, he acquitted the accused persons. It is against this order that the complainant obtained this Rule.
2. Mr. Kundu, learned Advocate appearing for the complainant, challenged the impugned order as without jurisdiction and illegal on the ground that it did not comply with the requirement of Section 258 of Criminal Procedure Code and contended that the learned Magistrate had no jurisdiction to acquit the accused persons in the absence of the complainant after a charge was framed. Mr. Mukherjee, learned advocate appearing for the State, while found no justification for the order passed by the learned Magistrate contended that since the order was one of acquittal it was open to the petitioners to prefer an appeal against that order and a revisional application was not therefore maintainable.
3. This argument of Mr. Mukherjee, in my view, cannot be accepted. Section 258 of the Criminal Procedure Code empowers a Magistrate to record an order of acquittal after a charge has been framed in a case governed by Chapter 21 of the Code, only when he finds the accused persons not guilty to the charge and not otherwise. In the instant case, the learned Magistrate does not record any such finding. On the contrary, the reason given by him is that the complainant was not taking any interest in the proceeding and as the complainant was found absent, he acquitted the accused persons. In a warrant case, a learned Magistrate is competent to pass an order after the charge is framed, either acquitting the accused or convicting him for the offence if he has to acquit the accused, he has necessarily to find him not guilty to the charge on the evidence that is already on record. But the absence of the complainant does not empower him to acquit the accused. Section 259 of the Code authorises a Magistrate to discharge all accused persons at any time before the charge has been framed in the absence of the complainant but once he frames a charge it is not open to him to either discharge or acquit any accused person in the absence of the complainant and his witnesses and it will be his duty to enforce the attendance of the complainant and his witnesses. In the instant case, the witnesses for the prosecution were all examined and the accused persons were not only examined under Section 342 of the Code but one of the defence witnesses was also examined in this case. The learned Magistrate should have recorded a finding that the accused persons were not guilty, before he could act under Section 258 in acquitting the accused. In the case of Nutbehari Sarkar v. Baroda Prashad Chowdhury reported in (1933) 37 Cal WN 712 : (1933) 34 Cri LJ 498, a Division Bench of this Court held after a charge has been framed in a warrant case the Magistrate was not entitled to record an order of acquittal under Section 258 of the Code of Criminal Procedure because of the absence of both the complainant and the accused.
4. It now remains to be seen if the petitioner should have preferred an appeal against the impugned order in the instant case. In my view, it was not necessary for the petitioner to prefer an appeal in the instant case inasmuch as the order of the learned Magistrate was not an order of acquittal within the meaning of Section 258, Criminal Procedure Code. The learned Magistrate had no jurisdiction to make the order in the absence of the complainant and such an order could be corrected in revision. I need only refer to the case of Nutbehari Sarkar, cited above, which was against an order under Section 258, Criminal Procedure Code where the Rule was made absolute in similar circumstances.
5. As for the other argument of Mr. Mukherjee I need only point out that this Court can invoke its inherent powers under Section 561-A of the Code of Criminal Procedure and treat an application in revision as a petition of appeal, in a case where the petitioner wrongly filed a revisional application even though he had a right to prefer an appeal. A reference may be made in this connection to the case of Nathmal Patodi v. Corporation of Calcutta reported in : AIR1967Cal150 .
6. In any view of the matter, therefore, the order in the instant case cannot be upheld. The Rule is accordingly made absolute. The order of the learned Magistrate is set aside and the case is sent back for being tried by some other Magistrate to be nominated by the S.D.O., Bongaon.