JUDGMENT Rajvi Roop Singh, J.C.
1. This is an appeal by the Government of Manipur against the judgment and order of S.D.O. Magistrate Second Class, Ukhrul, dated 25.9.1964 by which he acquitted the respondent Hornapla Tangkhulni of the offences under Sections 447 and 379 I.P.C.
2. The facts leading up to this appeal are few and simple. On 9.11.1961 Ngariphung Nagini and Rasim Shaiza lodged the complaint in the Court of S.D.M. Ukhrul against the respondent Hornapla Tangkhulni and others under Sections 447 and 379 I.P.C. with the contention that the accused trespassed in their paddy field called Shiyang and harvested paddy crops standing thereon. The S.D.M. without taking cognisance of the complaint forwarded it to the Officer in charge Police Station, Ukhrul, for investigation. The Police treated it as a written F.I.R. and registered the case under F.I.R. 73 (11)/61 Ukhrul Police Station under Sections 447 and 379 I.P.C. and after investigation a charge-sheet was submitted to the Magistrate only against the respondent under Sections 447 and 379 I.P.C. The learned S.D.M. transferred the case to the file of Magistrate Second Class, Ukhrul Sub-Division. On 19.4.1962, the learned Magistrate before framing the charge examined the informant and thereafter framed the charge against the accused and without correctly following the procedure under Section 251A Cr.P.C. adjourned the case for further examination of other P.Ws. Thereafter some more witnesses were examined on behalf of the prosecution, The case was adjourned for 25.9.1964. On 25.9.1964 when the case was called on for hearing the informant Ngaraiphung Tangkhulni was absent, therefore the learned Magistrate dismissed the complaint and discharged the accused.
3. Being aggrieved by this judgment the learned Government Advocate has filed this appeal. After the admission of the case notices were issued to the respondent for appearance. The respondent did not appear despite service, therefore I heard the arguments of learned Government Advocate.
4. The learned Government Advocate contended that in this case the learned Magistrate has erred in law in treating the case as a complaint case and discharging the accused due to the absence of the informant. It was next pointed out that in this case the learned Magistrate framed the charge against the accused, therefore his order of discharge of the accused amounts to an acquittal, and hence the petitioner was entitled to file the appeal. The learned Government Advocate further contended that in this case the charge was framed, therefore the learned Magistrate should have-tried to procure the attendance of the prosecution witnesses and thereafter he should have discussed the evidence on record, and after that he should have passed the order either of acquittal or of conviction. In this case the learned Magistrate adopted a wrong procedure, and also acted illegally in acquitting the accused, therefore this order of the learned Magistrate should be quashed.
There is great merit in the contention, advanced by the learned Government Advocate. The Section 259 applies only to cases where the proceedings have been instituted upon complaint. Hence, where the proceedings have not been instituted upon complaint, the Magistrate cannot invoke the provision of this section for discharging the accused on the ground of the absence of the Prosecuting Officer or the informant on the date of hearing. In the instant case the Police put up the challan against the accused person, therefore this case could not be called to have been instituted upon a complaint. Moreover, Section 259 only applies to cases where the complainant is absent on a date fixed for the hearing before the charge is framed. If the complainant absents himself after the charge is framed, the Magistrate has no power to discharge the accused on the ground of the absence of the complainant. Nor can the accused be acquitted under Section 258 in such a case as an order of acquittal under that section can only be passed on a finding of 'not guilty' The only course open to the Magistrate in such circumstances is to proceed with the case in the absence of the complainant unless he decides to adjourn the case. Besides, in a private complaint too after the framing of the charge the Magistrate is not entitled to discharge the accused due to default of appearance by the complainant. The term dismissal for default was not known to the Code of Criminal Procedure and that no criminal case could be dismissed for default of appearance of any party or witness after framing of the charge.
5. In this case, the Magistrate has committed another blunder in making an order of discharge after it (Sic) had been charged. The proper order in that case should have been one of acquittal if otherwise justified and in making the order of acquittal the merits of the case, as they stood on the date of the order, should have been considered and discussed. Further in this case the complainant could not under the Criminal Procedure Code be required to produce his witnesses himself. It was the duty of the Magistrate to exercise his powers under the Code to have the witnesses before him for further cross-examination. I, therefore, find that the order of the learned Magistrate was palpably erroneous. I, therefore, have no other alternative but to accept the appeal.
6. For the reason mentioned above, I allow the appeal, set aside the order of learned Magistrate dated 25.9.1964 and send the case hack to him for a fresh trial in accordance with law.