This is a Reference by the District Magistrate of Monghyr in which he recommends that an order of acquittal passed by a Deputy Magistrate at Monghyr should be set aside. The facts are as follows:—
Loka Mahton and Domoo Sahu are rival zemindars in a village and have been on bad terms with each other for some years. One Paltan Khan, said to have been an influential resident of the village, was appointed Gomasta by Domoo Sahu and succeeded in gaining over most of the villagers to the side of his master. Jitan Dusadh, a tenant in the village and a Goraet of Loka Mahton, was asked by Paltan Khan to give up service under Loka Mahton and go over to the side of Domoo Sahu. Jitan refused, and it is said that in consequence of his refusal, in the middle of the night of January 9th, 1915, Paltan Khan and others appeared at his house and carried off a quantity of paddy belonging to him. Jitan complained to the police and subsequently also to a Magistrate with the result that Paltan Khan and others were placed on their trial and were convicted under secs. 379, 147 and 323 of the Indian Penal Code. As the riot appeared to have been committed in the interest of Domoo Sahu, the employer of Paltan Khan, Jitan Dusadh applied to the District Magistrate to place Domoo Sahu also on his trial for offences under secs. 154 and 155 of the Indian Penal Code. The District Magistrate, on that application, directed the prosecution of several persons who were supposed to have taken part in the riot and ordered Jitan to file a fresh application against Domoo Sahu. Jitan did so and January 27th, 1916, was fixed for the trial. There was an adjournment to February 11th, but on February 4th, Jitan died. His son appeared in Court on February 11th and asked to be allowed to go on with the case. But the Deputy Magistrate acquitted the accused under sec. 247 of the Code of Criminal Procedure. It is quite clear from the order of acquittal and also from the explanation furnished by the Deputy Magistrate, that he was of opinion that he had no option but to acquit the accused of the circumstances. We have been referred to two cases on the construction of sec. 247 of the Code of Criminal Procedure, namely: Madho Chowdhury v. Turab Mian and Purna Chandra v. Dengar Chandra. In the former a servant of a zemindar had lodged a complaint of an offence under sec. 426 of the Indian Penal Code. When the case was called on it was found that the complainant was dead and the Magistrate acquitted, the accused. The High Court said “when the day came for disposal the servant of the zemindar, who had made the complaint, was dead, and the Magistrate adopted the rather extraordinary course, although he knew that the servant was dead, of acquitting the accused under sec. 247 of the Code of Criminal Procedure.” The Court seems to have been of opinion that the Magistrate had no jurisdiction to pass an order of acquittal in the circumstances. In the second case, a complaint had been made of offences under secs. 448, 352 and 323 of the Indian Penal Code, but the Magistrate had summoned the accused to answer only a charge under sec. 352 of the Indian Penal Code. The original complainant having died a nephew of the deceased asked the Magistrate to permit him to go on with the case. The Magistrate allowed the petition on the ground, apparently, that the accused had been guilty of contempt of Court. The learned Judges who disposed of this case said “The case is one under sec. 352 of the Indian Penal Code which is compound-able and we see no reason for the substitution of Bisseshur in place of the deceased complainant. An order under sec. 247 ought to have been passed by the Magistrate on the failure of the complainant to appear at the hearing of the case, and sec. 247 empowers the Magistrate to acquit the accused person, unless for some reason he thinks proper to adjourn the case to some other day.” They then went on to hold that the reason given by the Magistrate for proceeding with the case was not sufficient and they set his order aside. It is open to doubt whether sec. 247 of the Code was intended to apply to such a case as this. It seems to apply primarily to the case of a complainant who is alive, but does not appear. The closing words of the first paragraph of the section seem to suggest that the case should be adjourned in order to enable the complainant to appear. If sec. 247 does not apply at all to a case of this kind, there was nothing to prevent the Magistrate from going on with the proceedings. If it does apply to such a case then we think that the case before us was eminently one in which the Magistrate should have decided to go on with the proceedings. The District Magistrate points out in his reference that the offence complained of is an offence against the public tranquility, and he says that if he had contemplated the possibility of the case being dismissed on account of the absence of the complainant he would himself have taken action. It is urged before us that we ought not to interfere with an order of acquittal except on appeal by the Local Government. There is no doubt that the practice of the High Courts has always been to refuse to interfere in revision with acquittals except for special reasons. In the present case if the Magistrate had exercised his discretion and had given reasons for refusing to go on with the case, we might have been disinclined to interfere, but he seems to have thought that he had no option but to acquit the accused. It is a mere accident that the present case was instituted on the complaint of Jitan. It is a case of considerable importance involving the peace of the district, and under the circumstances we think that we ought to set aside the order of acquittal. The Sub-divisional Magistrate's order is accordingly set aside and he is directed to proceed with the trial of the case.
A.K.R
Order set aside.