Decided on March 08,1967

P.T. JOY Appellant


- (1.) The revision petitioner is the complainant in C. C. No. 675 of 1965 on the file of the Sub Magistrate's Court, Thiruvalla. The complaint was that the accused committed offences punishable under S.279, 337 and 338 of the Indian Penal Code. After the prosecution evidence, the case was posted to 8 12 65. When the case was called on that day, the complainant was not present in Court. The Court, therefore, discharged the accused under S.259 Cr. P. C,
(2.) The petitioner canvasses the correctness of this order. S.259 of Criminal Procedure Code states, "When the proceedings have been instituted upon complaint, and upon any day fixed for hearing of the case the complainant h absent, and the offence may be lawfully compounded, or is not a cognizable offence, the Magistrate may, in his discretion, notwithstanding anything hereinbefore contained, at any time before the charge has been framed discharge the accused". The offence under S.279 is cognizable and non compoundable. That is not disputed. But, it was argued that even if one of the offences alleged to have been committed is non compoundable or cognizable, so long as the other offences alleged to have been committed are non cognizable or compoundable, the learned Magistrate was competent to discharge the accused under the Section. I do not think that the learned Magistrate has any such power. In Boni Lal v. Pranab Kumar AIR 1958 Tripura 22 this question was considered. In that case there was a joint trial of the accused for offences under S.117, 224 and 353 IPC. and the accused were discharged under S.259 on account of the absence of the complainant. It was held that as all the offences were non compoundable and those under S.224 and 353 were cognizable, S.259 could not be invoked, that the correct course for the Magistrate was to enforce the presence of the complainant and his witnesses, and being a joint trial the fact that the offence under S.117 was not cognizable would make no difference.
(3.) The terms of the Section are clear that in a case where the complainant alleges the commission of an offence which is cognizable or non compoundable, the Magistrate cannot discharge the accused under the Section for the absence of the complainant. Therefore, I set aside the orders of the Court below and direct the Magistrate to take the case to his file and proceed in accordance with law. The petition is allowed.;

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