SONKI Vs. MOONGLA

JUDGEMENT

(1.) THIS revision has been filed by the complainant Mst. Sonki who filed a complaint against the opposite party Moongla and Mst. Mohini under secs. 325, 341 and 447 of the Indian Penal Code in the court of the Extra Magistrate, Jhunjhunu. After the prosecution evidence had been recorded and the accused had been examined under sec. 342, a day was fixed for arguments as to whether a charge should be drawn up or not. On this date, the complainant did not appear and the Magistrate discharge the accused. Against this order of discharge, an application for revision was filed in the court of Sessions Judge at Jhunjhunu but it has been dismissed. The complainant has now come in revision to this Court.

(2.) I have heard Mr. P. N. Dutta for the applicant. The opposite party has not appeared in spite of notice. It has been argued by Mr. Dutta that the order made by the learned Magistrate was under sec. 253 (2) of the Criminal Procedure Code and such an order could not be made unless the Magistrate had applied his mind to the evidence produced on behalf of the prosecution. It was argued that the learned Magistrate had presumed simply from the absence of the complainant that there was case for a charge-sheet against the accused. He has relied upon the rulings in the case of Ram Chand Kapur vs. Mohanlal (1) (Calcutta Weekly Notes, 1948-49, p. 816.) and Waheb Bux Waeshi vs. Fakharuddin Piracha (2) (AIR 1942 Cal. p. 428. ). In dismissing the application for revision, the learned Sessions Judge has said that because all the offences are compoundable and upon the date fixed for hearing the complainant was absent, the Magistrate had discretion to discharge the accused under sec. 259 of the Criminal Procedure Code. The learned Sessions Judge has however, overlooked the fact that the discharge was not under sec. 259 of the Criminal Procedure Code but under sec. 253 (2) of the Criminal Procedure Code. Under sec. 253 (2) an accused cannot be discharged simply on the ground that complainant in a compoundable case is absent. Under sec. 253 (2), an order of discharge can be made if, after applying his mind to the evidence recorded on behalf of the prosecution, and the statements of the accused, the Magistrate is of opinion that there was no prima facia case against the accused. In the present case. , the learned Magistrate has not at all applied his mind to the evidence on the record. He does not appear to have read the statement of a single witness and seems to have acted only on the presumption that because the complainant was absent, therefore,, he had no case for a charge against the accused. On such a presumption, an order of discharge under sec. 253 (2) of the Criminal Procedure Code cannot be made. In the Waheb Bux Waeshi vs. Fakharuddin Piracha (1) (AIR 1942 Cal. , p. 428.), referred to above, it was held by a Division Bench of Calcutta High Court that: - "sec. 253 (2) empowers a Magistrate to discharge an accused person only if for reasons to be recorded by such Magistrate he considers the charge to be groundless. Where far from recording any reasons to show that the Magistrate had considered the charge to be groundless it is apparent that the Magistrate had evidence before him but had not applied his mind to the question whether the charge had been substantiated or not, the Magistrate has, no jurisdiction to pass an order discharging the accused under sec. 253 (2.)" In the present case, the Magistrate far from applying his mind to the question whether the charge has been substantiated or not does not appear at all to have looked into any evidence whatsoever recorded on behalf of the prosecution. Under the circumstances, the order of discharge cannot be maintained.