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Judgment
M. Wahajuddin, J.—The applicants have come forward with a prayer that the order of the Magistrate summoning the applicants under Sections 447, 427, 147 and 380, IPC, may be set aside and the complaint as well as the Criminal case No. 1308 of 1982 may be quashed. It is urged that the earlier order of the Magistrate dated 19-7-1982 on earlier complaint discharging the accused persons amounted to an acquittal, so a subsequent complaint does not lie. It was, further, submitted that discharge in a warrant case, the concerned case being a warrant case, amounted to an acquittal. Reliance in support of such contention was placed upon the pronouncement in the case of Smt. Kitabun v. State of U.P. 1982 U.P. CR 95. That is a pronouncement of a Single Judge, namely, Hon''ble N.N. Sharma, J. With greatest respect to the learned brother Judge, I may mention that the following pronouncements were not noticed in that case, nor considered:
(i) State and Others Vs. Bansu and Others, (ii) Laxmi Narain v. Abdul Narain 1968 AWR 703 (Single Judge), Ratilal Bhanji Mithani Vs. State of Maharashtra and Others, Swaroop Singh Vs. Emperor, .
In all these cases discharge in a warrant case has not been treated as acquittal. In the case of Swaroop Singh (supra) it was held that fresh complaint is not barred. In the case of Laxmi Narain v. Abdul Karim (supra) also it was held that the discharge did not amounted to acquittal and fresh complaint is maintainable. In the case of State v. Bansu (supra) it was held that in a warrant case discharge does not amount to acquittal. In this case rather charge was also framed, but the case was later transferred to another court and it was held that the succeeding court will be deemed to have proceeded de novo and ail earlier proceedings, including framing of charge stood wiped off and thereafter it was further observed that subsequent discharge does not amount to acquittal in a warrant case. In the case of Ratilal Bhanji v. State of Maharashtra (supra) the Supreme Court observed that the trial in a warrant case starts with framing of the charge. After such charge is framed, the Magistrate can either acquit or convict, unless be decides to proceed under Sections 325 and 360 of the new Code of Criminal Procedure.
As there is a Supreme Court pronouncement as well as a Division Bench case, as aforesaid, laying down that discharge in warrant case does not amount to acquittal, I am bound by such view and any occasion for making any reference to a larger Bench would also not arise. I, therefore, hold that a discharge in a warrant case before framing any charge and dismissal of complaint for want of evidence before the stage of charge does not amount to an acquittal in a warrant case. In fact, the order is also very clear and the Magistrate has simply purported to discharge the accused persons concerned u/s 245(1), Code of Criminal Procedure. The argument that it will be an acquittal u/s 248(1), Code of Criminal Procedure again is against the very language of that lection. The section reads ''that if any case under that Chapter In which a charge has been framed the Magistrate finds (he accused not guilty, he shall order an acquittal''. In the present case the charge was not framed. What transpired was that the applicant wanted to withdraw the complaint for want of notice u/s 448, Code of Criminal Procedure, for moving such complaint after fresh notice, to which the Magistrate did not accede, and then proceeded to dismiss the complaint for want of evidence. Reliance is further placed upon the case of State of V.P. v. Prasadi 1965 AWR 686. That was a case under Arms Act. It is again a single Judge pronouncement. I have already referred the Division Bench case and the case of the Supreme Court. In fact, the earlier complaint could not proceed for want of a notice and the Magistrate in his anxiety for disposal rejecting the application for withdrawal dismissed it, as no evidence was being produced. The facts of this case are also distinguishable. The inherent powers cannot be exercised to perpetuate any injustice. This application is summarily rejected.