1985 (4) TMI 75

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....not appear before the Court and the learned Magistrate passed the following order : "In the circumstances I am inclined to deal with the case in accordance with Section 256, Cr.P.C. Accordingly, the accused persons are entitled to be acquitted under Section 256, Cr.P.C. Hence, ordered, that the accused persons be acquitted under Section 256, Cr. P.C." 2. The order of acquittal quoted above leaves no room for doubt that the learned Magistrate treated the case as a summons case. In appeal, therefore, a very interesting question has been raised if the case under consideration of the learned Magistrate was a summons case as he purported to treat it. On behalf of the appellant it is argued that the complaint disclosed a warrant case and accord....

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....ocate for the respondents, in this connection, points out that the relevant provisions of the Central Excises and Salt Act, 1944 earlier quoted indicates that the maximum punishment prescribed for the offence disclosed in the petition of complaint in the instant case is three years and the minimum sentence prescribed is fine. He accordingly submits that taking into consideration the possibility of imposition of the minimum sentence the Court was well entitled to treat the case as a summons case. Mr. Sanyal, the learned Advocate for the appellant, however, contends differently. He argues that the maximum sentence for the offence prescribed by a statute will determine the character of the case in which the accused will be tried. He relies on ....

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....ould not be in a position to impose the maximum punishment prescribed if the gravity of the offence so demands. We have, therefore, no hesitation to hold that the determining factor for deciding the character of a case as a warrant case or a summons case would be the highest measure of punishment prescribed for the offence disclosed. Applying that test to the present case we have not the slightest doubt that the learned Magistrate was wrong in recording the acquittal of the case under Section 256 of the Code which is possible only in a summons case. The consequence of such an order of acquittal is that the accused cannot be prosecuted again for the same offence. If the learned Magistrate was so inclined for absence of the complainant he cou....