C.

1. The learned Sessions Judge has made this reference under Section 438 Cr.P.C. with a recommendation that the order of acquittal of two of the respondents namely, Narayan Das and Atindra Das dated 13.11.59 may be set aside and that the Magistrate may be directed to retry the case according to law.

2. The case arose out of a complaint filed by the petitioner herein before the sub-divisional Magistrate, Dharmnagar on 6.10.58 against the 4 respondents under Section 323 and 392 I.P.C. The Magistrate adopted warrant procedure in the trial as Section 392 I.P.C. will make it a warrant case. 5 prosecution witnesses were examined and cross-examined before charge. Then he found that no case under Section 392 I.P.C. was made out against any of the respondents. So he dis1 charge all the respondents under Section 253(1) Cr.P.C. in respect of the offence under Section 392 I.P.C. on 3.7.59. But he found that against the two respondents Narayan Das and Atindra Das there was evidence of causing simple hurt under Section, 323, I.P.C. So he decided to try Narayan Das and Atindra Das under Section 323 I.P.C. As however, the offence under Section 323 was not punishable with imprisonment for a term exceeding one year, the Magistrate decided to siift to summons procedure under Chapter XX. He thereafter examined Narayan Das and Atindra Das under Section 242 Cr.P.C. on 22.8.59 and posted the case for the evidence of the complainant and his witnesses to 13.11.59. On tint data Narayan Das and Atindra Das as also the complainant were present. But the P.Ws. were not present.

The complainant filed a petition for adjournment on the ground of the illness of the P. Ws, But the Magistrate refused to grant time as no medical certificate was filed to prove the illness and he acquitted the accused. He has not stated under what provision of law he acquitted the accused. The only provision in a summons procedure case for acquittal without the examination of the witnesses is Section 247 Cr.P.C. So we have to take it that the acquittal was under that section. But Section 247 would apply only where the complainant does not appear. In the present case the complainant was admittedly present on 13.11.59.

3. The learned Sessions Judge has, therefore, made this reference stating that the order of acquittal evidently passed under Section 247 on the footing that it was a summons case was illegal, as the complainant was present on the date of hearing. The Sessions Judge has further pointed out that the Magistrate acted illegally in changing over to summons procedure after haying started the enquiry under warrant procedure.

4. A preliminary objection was raised On behalf of Narayan Das and Atindra Das that a revision would not lie as this was a case of acquittal and as Section 417 Cr.P.C. provided for the filling of an appeal. My attention was drawn to Section 439(5) Cr.P.C. which provided that where under the Criminal Procedure Code an appeal lay and no appeal was brought, no proceed ngs by way of revision can be entertained at the instance of the party who could have appealed. The wording at Section 439(5) is

"where, under the Code, an appeal lies and no appeal is brought no proceedings by way of revision shall be entertained at the instance of the party who could have appealed"

5. Now if we turn to Chapter XXXI Criminal Procedure Code dealing with appeals, Section 404 provides that no appeal shall lie from any judgment or order of a criminal Court except as provided for by the said Code or by any other law for the time being in force. Sections 405, 406, 406(A), 408, 410 to 411(A), 415 and 415(A) are the exceptions referred to in Section 404 where appeals will lie under the Code against conviction by the Criminal Courts.

6. Section 417 deals with appeals in cases of acquittal. Under Section 417(1) the State Government may through the Public Prosecutor present an appeal to the High Court against an acquittal by any inferior Court. Section 417(2) similarly permits the Central Government to present an appeal against acquittal through the Public Prosecutor But they are in cases charged by the police an behalf of the State or the Central Government. In the case of an order of acquittal in a case instituted upon complaint, the complainant has no right of appeal provided under the Code unless on an application made by the complainant in that behalf the High Court grants special leave to appeal. This is made clear under Section 417(3). This it cannot be stated that a complainant has a right of appeal against an acquittal provided in the Criminal Procedure Code and hence it cannot be said within the meaning of Section 439(5) Cr.P.C. that an appeal lies which can be availed of by the complainant against an order of acquittal. At best, it can only be said that under Section 417(3) he has a right to file an application for leave to appeal to the High Court. But Section 439(5) does not say that a revision should not be entertained at the instance of a party who could have filed an application for leave to appeal under Section 417(3) but only who could have appealed. Thus, in my opinion, Section 417(3) read with Section 439(5) is no bar to a complainant from invoking the revisional jurisdiction of the High Court under Section 439(1).

7. But in the present case this question doss not arise because this is a reference made by the. Sessions Judge under Sections 435 and 438. Sections 435 and 438 do not prohibit the Sessions Judge or the District Magistrate in reporting a case to the High Court for orders even in a case of acquittal if on an examination of the record they find that an order even if it is a ease of acquittal, passed by an inferior Court should be reversed; vide the decisions Wazir Kunjra v. Emperor 30 CrLJ 673 : AIR 1929 Pat 139 and Nathu Mal v. Abdul Haq AIR 1930 Lah 159. It has also been observed in the decisions Zamir Qasim v. Emperor AIR 1944 All 137 (FB) and Waryam Singh v. Emperor AIR 1941 Lah 214 that it is open To the High Court under Section 439 to set aside an order of acquittal and order a retrial even in the absence of an appeal under Section 417. But the latter two decisions did not however decide whether Section 439(5) will bar a revision at the instance of a party who could have appealed under Section 417 Cr.P.C.

8. I may notice here some of the recent decisions of other High Courts on that question. One is State v. Alakh Narain Singh . In that case the State preferred revision against an acquittal by a Magistrate to the Session Judge instead of filing an appeal under Section 417 to the High Court and the Sessions Judge referred the case to the High Court under Section 438 for setting aside the acquittal. It was held that Section 439(5) operated as a bar to the reference as it was made on an application in revision to the Sessions Judge by the State who had failed to appeal to the High Court under Section 417. It was stated therein that Section 439(5) would apply even if the party concerned was the State and the application was made to the Sessions Court. That decision however will not apply to our present case as here the party who applied to the Sessions Judge to make this reference was a private complainant who had no right of appeal as such under Section 417, but only a right to apply for leave to appeal as I have pointed out.

9. A single Judge of tile Mysore High Court held in Chairman, Village Panchayat, (sic) v. Thimmasetty Gowda AIR 1956 Mys 62 that a complainant in a private case can prefer an appeal under Section 417(3) against an order of acquittal and so an appeal against the order of acquittal is thus provided and when no appeal is preferred, Section 439(5) bars a private party From having recourse to a revision petition. In that case the revision petition was directly filed to the High Court and it was not a ease of reference by the Sessions Judge to that Court. I have already pointed out that Section 417(3) Cr.P.C. will not give a private complainant a right to file as appeal and that the right to file an application will not come within the meaning of the words "an appeal lies" under Section 439(5). With all respect, I am not in a position to agree with the said decision.

10. The Orissa High Court again in a single Judge's decision reported in The State v. K. Lachman Murty has held that where in police cases ending in acquittal by the trying Magistrate, the State omits to file a regular appeal under Section 417 it cannot move the High Court through the Sessions Judge to reverse the order of acquittal in exercise of its revisional jurisdiction under Section 439 and that Section 439 (5) would operate as a bar. The decision was relied on in the said decision. There again it is not a case of a private complainant.

11. The latest decision on the question is State of Mysore v. Md. Jalal AIR 1959 Mys 54. In that decision the ruling in and the Patna ruling in have been considered and dissented from. That was a case where in a police case the State instead of filing an appeal against the order of acquittal filed a revision before District Magistrate who made a reference to the High Court it was held that Section 439(5) can operate only against a party and cannot operate to deprive the High Court of its undoubted jurisdiction. It may be mentioned that there is nothing corresponding to Section 439(5) in Section 435 or Section 438 preventing a Sessions Judge from making a reference to the High Court in a case of acquittal.

12. Thus the position seems to be that for a private complainant Section 439(5) will not be a bar for applying in revision to the High Court or to the Sessions Judge instead of filing an application under Section 417(3) to the High Court for permission to file an appeal and it will not be wrong for the Sessions Judge to make a reference to the High Court. When such a reference with a recommendation by the Sessions Judge after an examination of the records is before the High Court it will be the duty of the High Court to exercise its revisional jurisdiction and see whether the case merits interference as suggested by the Sessions Judge, The High Court cannot refuse to exercise-its revisional jurisdiction, after the matter had come to its knowledge, on (he ground that no revision would lie at the instance of the party.

13. We have, of course to keep in mind in dealing with such cases, the observations of the Supreme Court in D. Stephens v. Nosibolla. that the revisional jurisdiction conferred under Section 439 is not to be lightly exercised but only in exceptional cases where the interests of public justice required interference for the correction of a manifest illegality or the prevention of a gross miscarriage of justice.

14. The preliminary objection raised by the respondents, cannot, therefore, be accepted.

15. Turning to the order of acquittal passed by the Magistrate it is clear that he cannot have passed the order of acquittal under Section 247 Cr.P.C. as the complainant was present on the date of hearing and Section 247 will net, therefore, apply at all. Nor could the Magistrate have acquitted the respondents under Section 245 Cr.P.C. as the acquittal under that section can be only after taking the evidence referred to in Section 244. There has been a manifest illegality in the acquittal and justice requires that he complainant should be given an opportunity to prove his case. Thus the learned Sessions Judge was right in making this reference as the Magistrate's order of acquittal is clearly illegal. It has, therefore, got to be set aside.

16. There is another vital objection which has been pointed out by the learned Sessions Judge. It is that the Magistrate having started the enquiry under warrant procedure cannot change it to summons procedure in the middle of the enquiry and that if warrant procedure had been continued, it would have been the duty of the Magistrate to summon the prosecution witnesses under Section 256(1) Cri.P.C.

17. Section 251 provides that in the trial of warrant cases institute on complaint the Magistrate shall follow the procedure specified in Sections 252 to 259. Now the Magistrate has to decide when a complaint is filed before him and he finds that there is sufficient ground for proceeding under Section 204 Cr.P.C. as to whether he will adopt summons procedure under Chapter XX or warrant procedure under Chapter XXI. He can do this only on the allegations made in the complaint or disclosed in the preliminary examination of the complainant or in the preliminary enquiry or investigation held by a Magistrate or a police officer under Section 202 Cr.P.C. When once he has thus decided whether it is a summons case or a warrant case he has to adopt the procedure accordingly. Having adopted the procedure of a warrant ease he has to complete the trial under the same procedure. It may happen that in some cases he will find on taking the evidence for the prosecution under Section 252 Cr.P.C. that an offence triable as a warrant case has not been made out but that only an offence triable as a summons, case is proved prima facie. Even then he cannot at that stage change the procedure.

18. This will have serious consequences in the results which will follow from such change of procedure. Such different procedure for summons cases and warrant eases has been provided in the Criminal Procedure Code mainly so that accused persons in serious cases where the punishment for the offence is more than one year's imprisonment may have the benefit of a fuller trial after the framing of forma] charges in writing. When once however the Magistrate has decided to follow warrant procedure, the Magistrate cannot deprive the accuse of the opportunity to have the benefit of the warrant procedure even when the Magistrate finds1 before the framing of the charge that an offence for a warrant case has not been made out.

19. I am aware of Section 254 Cr.P.C. which says that if, when such evidence referred to in Section 252 and examination, if any, of the accused referred to in Section 253(1) have been taken and made or at any previous stage of the case, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable as a warrant case, he shall frame in writing a charge against the accused. This may indicate that if the Magistrate is of opinion that an offence triable as a warrant case has not been committed1, it shall not be necessary for him to frame in writing a charge against the accused.

20. But even then it will not have the effect of permitting the Magistrate to revert to summons procedure if he finds that only an offence triable as a summons case has been made out. Pf that was the intention of the legislature they would have made a provision that in such a case he Magistrate may revert to summons procedure. Actually it is difficult at that stage to revert to summons procedure because the prosecution witnesses have already been examined and either partly cross-examined or cross-examination would have been reserved under the summons procedure, the Magistrate has to examine the accused under Section 242 before he starts the trial, whereas having already adopted warrant procedure he: would have examined the prosecution witnesses Thus it is mat possible, at that stage, to question the accused as required under Section 242.

21. Thus the questioning of the accused under Section 242 in the present case after the examination of the witnesses under Section 252 was irregular. It is clear, therefore that Magistrates should continue to follow the warrant; procedure even if they find on the trial before charge under Sections 252 and 253, that an offence triable as a warrants case has not been made out.

22. It has been held in the decision Ratanlal Jagannath v. Haiku Deochand AIR 1954 Mad B 2 that where a trial started as a warrant case the procedure should not be changed even if the accused appears to have committed an offence triable as a summons case and that it is not fair to change the procedure simply because the accused derives benefit of Section 247 thereby. Again it has been held in Sadh Ram v. State that where a summons case is tried as a warrant case the Magistrate should follow the procedure of a warrant case to the end and if he omits to comply with the provisions of sections 254, 255 and 256 the omission amounts to an illegality which is not cured by Section 537.

23. Thus though in this case there has been no prejudice to the accused as the case ended in his acquittal, it is better in the further trial, which I am going to order, that the Magistrate adopts warrant procedure as otherwise if it ultimately goes against the accused, there is likelihood of objection that the trial has been vitiated. All Magistrates of this Union Territory will, therefore, be directed to continue to adopt warrant procedure in the trial of cases when once they have adopted warrant procedure in the beginning of the trial and not to shift to summons procedure even it they find later in the trial that no offence triable as a warrant case was proved prima facie.

24. Thus the Magistrate in this case ought to have continued to adopt the warrant procedure against the two respondents Nurayan Das and Atindra Das. In any case, the acquittal of the accused under Section 247 Cr.P.C. was therefore illegal. The reference is accepted. The Order of the Magistrate dated 13.11.59 is set aside and the Magistrate is directed to proceed with the trial of the case against Narayan Das and Atindra Das under Section 323 I.P.C. as a warrant case and dispose it of, according to law.