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Report No. 141

5.2. Absence of power of restoration.-

One of the consequences of the order of acquittal is that a second trial cannot be held for the same offence in view of the prohibition against double jeopardy. The only remedy available would be by way of an appeal against acquittal under section 378 of the Code. The conditions of that provision are, however, fairly stringent. In any case, since there would be no decision on the merits, the order of acquittal cannot be assailed on merits in the appellate forum and the order can be challenged solely in the context of the failure of the magistrate to adjourn the matter instead of dismissing the same for default.

As the magistrate has no power1 to restore a case dealt with under section 256(1), the resultant harm cannot be crazed even if the complainant is subsequently able to establish that his absence on the date fixed for hearing was for sufficient cause. And in view of the order of acquittal and the attendant bar against double jeopardy even a fresh complaint may not be competent and the wrong would become irreversible and irreparable.

1. A.S. Gauraya v. S.N. Thkur, 1986 Cr LJ 1074 (SC): 1986 (2) SCC 709.

Need for amending the Law as regards to the Power of Courts to Restore Criminal Revision Applications and Criminal cases dismissed for Default in Appearance Back

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