ORDER C.A. Rahim, J.
1. This revision has been preferred against the judgment and order dated 22-9-1982 passed by the IV Additional Sessions Judge, Meerut, in Criminal Revision No. 386 of 1981. By that order he set aside the order dated 22-10-1981 passed by Sri Bishambhar Dayal, Special Judicial Magistrate, Meerut in case No. 1 of 1981 under Section 342, I.P.C.
2. The prosecution case is that on 12-12-1980 Rajpal Singh son of Kartar Singh, brother of the complainant had gone to village Iswar to deposit his school fees. One Harendra accused of this case took Rajpal to village Daurala for showing some feature film but he was taken to village Mansoorpur in district Muzaffarnagar. The other two accused persons, with one unknown man, joined there. They took Rajpal to the Railway station and offered tea and the boy became unconscious after taking tea. He was taken to Hardwar in that condition and confined in a house there. Their intention was to sell the boy. He was kept there till 24-12-1980 when he was threatened frequently. On that day the boy escaped somehow and returned to his house. He narrated the whole story to his father, on which he filed a report at the police station. On 1-1-1981 the father of the boy filed a complaint under Sections 363 and 342, I.P.C. in the court of Special Judicial Magistrate, Meerut. The said Magistrate after recording the statements of the complainant and two witnesses summoned the accused persons under Section 342, I.P.C. The accused person appeared and on 28-5-1981 they moved an application contending that the said Court had no jurisdiction to try this case as according to the prosecution the boy was confined at Hardwar. On the said date i.e. on 28-5-1991 the complainant did not appear as he died and hence the accused persons were acquitted.
3. On 22-6-1981 one Nepal Singh, brother of late Kartar Singh filed another application with regard to the said incident and the learned Magistrate after examining the complainant and after going through the record of the previous case summoned accused persons under Section 342, I.P.C. On 21-9-1981 the accused persons appeared and an application was moved challenging the maintainability of the second complaint in view of the provisions of Section 300, Cr.P.C. The learned Magistrate, after hearing the parties, dismissed the complaint and acquitted the accused. A revision was filed against the said order by Nepal Singh, which was allowed on 22-9-1982. The order of the Magistrate dated 22-10-1981 was set aside with a direction to decide the case afresh and to proceed according to law. The learned Sessions Judge is of the opinion that the provision of Section 300, Cr.P.C. has no application in this case. He has also held that the circumstance for non-appearance of the complainant Kartar Singh in the first case was due to his death and the Magistrate ought not to have dismissed the complaint at the first instance. He has also held that in both the cases proper appraisal of the merits of the case was not done as it was a case of kidnapping but the Magistrate summoned the accused persons under Section 342, I.P.C. which was improper.
4. The learned Counsel for the revisionist has submitted that the second complaint is not maintainable in view of the order of acquittal passed by the learned Magistrate in the first case. He has also submitted that Revision should have been filed against the order of acquittal in the first case and there is no scope of filing a fresh complaint. This is bad in law. He has also submitted that the Meerut court has no jurisdiction to try the case under Section 342, I.P.C. when the boy was stated to have been confined at Hardwar which is within the jurisdiction of district Saharanpur. In the first complaint which was filed by Kartar Singh the accused persons were acquitted under Section 256, Cr.P.C. due to the death of the complainant. On that date hearing of the petition with regard to the jurisdiction of the Court was fixed but the Magistrate without deciding the said application acquitted the accused on account of the death of the complainant.
5. In P. Ramanatha Aiyar's Code of Criminal Procedure Vol.II (5th Edition) at page 2011 two cases have been reported. In the case of C.K. Shivaraman Achari v. D.K. Agrawal, 1978 Cri LJ 1376 (Ker) it was decided that on the absence of the complainant the court can acquit the accused or adjourn the case to a future date or dispense with the attendance of the complainant and proceed with the case and which course the Magistrate should adopt, is left to his discretion which is to be exercised judicially. In the case reported in AIR 1963 Orissa 90 the said principle of law was also spelt. In the instant case it appears that on the said date the accused persons appeared and filed an application challenging the jurisdiction of the court but without deciding the said case in the absence of the complainant and when the death report was communicated to the court, the learned Magistrate adopted a short cut way by acquitting the accused persons. So it does not appear that he applied his mind as to the matter pending before him and when the death report was communicated to him he could have without abruptly terminating the case, could have fixed another date for hearing of the case allowing sufficient time and opportunity to other aggrieved person, i.e. Raj Pal son of the complainant to appear and to get himself substituted in that case.
6. In the case of Om Saran v. Mrs. Satya Dhawan 1990 Cri LJ 1619 (Delhi) it was held that where in a summons case the offence is not personal to the complainant and he is not the only person aggrieved, then the Magistrate can exercise his discretion and instead of acquitting the accused, he can adjourn hearing of the case to some other date. So I find that the Magistrate did not act judicially in passing the order of acquittal on the death of the complainant when the kidnapped boy, was the other aggrieved person to whom great injustice was done by not allowing him to be substituted or impleaded. In these circumstances I find that the acquittal under Section 256, Cr.P.C. does not allow Section 300, Cr.P.C. to operate and to cause hindrance in filing a second complaint. It is admitted that the case was not concluded on merits or that none of the three courses open to the Magistrate was adopted. He has taken such a course which prejudiced the kidnapped boy and justice was denied to him.
7. In the same book at page 2020, a case was reported, 19 CN 1211, where it was decided that "where an order of acquittal is wholly without jurisdiction as where a Magistrate acquits the accused on the ground that the complainant is dead, there is no bar to the Magistrate's taking cognizance of a second I complaint." In the instant case successive injustice has been done to the complainant, firstly when the learned I Magistrate held that a prima facie case was made out against the accused persons, there was ho reason why accused persons were not summoned under Section 363/342 I.P.C. The story of taking away the boy was started on the inducement of revisionist No. 1 and instead of taking to Daurala he was taken to village Mansoorpur and then to Hardwar. The second injustice was done when the accused persons were acquitted under Section 256 Cr.P.C. on the death of the complainant. If the accused persons would have been summoned under Section 363, I.P.C. the application of Section 256, Cr.P.C. would not be available and in that case the Magistrate had to discharge the accused persons under Section 249, Cr.P.C., which does not amount to acquittal for which the scope of application of Section 300, Cr.P.C. would not have arisen. The third injustice was done to the complainant when the second complaint case was also dropped at the instance of the accused persons.
8. This is a case where a boy was taken away from District Meerut to district Muzaffarnagar and then to Hardwar, within the district of Saharanpur. The allegation is that he was made unconscious on the way and was taken to Hardwar for the purpose of selling him. The allegation is no doubt serious but in spite of giving information to the police no action was taken and when a complaint was lodged no remedy was rendered to him.
9. The learned Counsel's contention that instead of filing a second complaint, a revision should have been preferred but it was not considered by him that when the complainant is dead who else is entitled to file a revision against the other dated 28-5-1981. Moreover, the case reported in the Aiyar's Cr. Procedure Code (supra) it was held that there is no bar to the Magistrate's taking cognizance by means of the second complaint. I find that the order dated 28-5-1981 is illegal and was passed without application of mind and cannot be termed that the learned Magistrate has exercised his power judicially. Hence I find that it was proper on the part of Nepal Singh, brother of Kartar Singh, deceased and uncle of the victim boy, to lodge a second complaint.
10. Now with regard to the jurisdiction, the contention of the learned Counsel that when the boy was kept in confinement at Hardwar, the courts at Meerut had no jurisdiction. I have dealt with the matter and found that cognizance of the offence under Section 342, I.P.C. was taken inadvertently, if not wrongfully. The learned Sessions Judge has also held that the facts appearing in the petition of complaint and also from the evidence of the witnesses, including the victim boy, it appears that prima facie case of the offence under Section 363, I.P.C. has been made out against the accused persons and it is not known why instead of Section 363, I.P.C. the accused persons were summoned under Section 342, I.P.C. So he has passed an order allowing the revision and also remanding the matter to the Magistrate Court for reconsideration of the matter according to law. After going through the matter I also find that the element of Section 363, Cr.P.C. is very much present at the stage when the prima facie case was being looked into and the matter should be reconsidered by the learned "Magistrate.
11. The Indian Penal Code has characterised the offences by putting a number which is based on the allegations put either in the first information report or in the petition of complaint. Here a case was started on the basis of the petition of complaint and thereafter the complainant and witnesses were examined under Sections 200 and 202, Cr.P.C. the details of the allegations will determine what offence was committed by the accused. If there is an element of kidnapping in the complaint and also in the evidence and the learned Magistrate does not choose to put that section at the time of issuing process. I apprehend that instead of doing justice to the complainant a great injustice was done and certainly as a court of revision this Court is empowered to rectify the wrong committed by the Magistrate intentionally or unknowingly. In the instant case the Magistrate arbitrarily issued process under Section 342 I.P.C. which should have been under Section 363/342, I.P.C. and in that case there would have been no complication in fixing jurisdiction of the courts. It is the latches of the Magistrate which indulged the accused persons to raise the question of jurisdiction.
12. Having gone through the points which have been raised by the learned counsel at this stage I do not consider that there is anything to interfere with the decision of the learned Additional Sessions Judge and accordingly the revision is dismissed. The learned Magistrate shall not take into consideration any of the observations made in this judgment which is particularly for the purposes of disposing of this Revision and he will be free to act on merits after considering the evidence adduced or to be adduced before him.