Decided on November 12,1968



- (1.)THIS is a revision application submitted by Bhatt Shailesh Kumar against the order of learned Sessions Judge, Kotah, dated November 29, 1966. It appears that bhatt Shailesh Kumar filed a complaint on April 16, 1965, against Shri Sampat Mal lodha and four others in the Court of Additional Munsiff-Magistrate No. 1, Kotah, under Sections 457, 341, 380/114, I. P. G. The complaint was registered. The complainant was present in. the Court on 3rd February, 1966, but on account of the absence of his counsel, he could not be examined then. Similarly, he was present on the next date falling on March 23, 1966, but that day also, on account of his indisposition, he could not be examined. On April 26, 1963, he was not present at the time when the case was put up. Thereupon the Magistrate dismissed the complaint under Section 253 (1), Criminal p. C. , for want of evidence and the accused were discharged. A revision application was directed against that order in the Court of learned Sessions Judge, Kotah. The said Judge observed that the case had been adjourned twice on account of the absence of the complainant and that on the third hearing also he remained absent. On that f round he dismissed the revision application, agrieved against the above order, the complainant has filed the present revision petition.
(2.)I have heard the arguments advanced on behalf of both the parties. If there was no evidence against an accused, then there was a good ground for discharging them, but before it can be said that there was no evidence, it was incumbent upon the Magistrate to call and examine such witnesses as were alleged to have known the facts. This is a warrant case and offences under sections 457, 341 and 380 read with S. 114, I. P. C. , are cognizable and non-compoundable. The procedure for the trial of the case is laid down in Chapter XXI of the Code of Criminal Procedure. Section 252, Criminal P. C. , requires the magistrate to ascertain from the complainant or otherwise the names of any persons likely to be acquainted with the facts of the case and to be able to give evidence for the prosecution and then he has to summon, to give evidence before himself, such witnesses as he thinks necessary. Then comes S. 253, Criminal P. C. , which provides in Sub-section (1) for discharge of the accused. Sub-section (1) lays down that if, upon taking all the evidence referred to in Sec. 252 and making such examination, if any, of the accused as the magistrate thinks necessary, he finds that no case against the accused has been made out which, if un-rebutted, would wan-ant his conviction, the Magistrate shall discharge him. Sub-section (2) of Section 253, Criminal P. C. , gives the Magistrate a large discretion for the discharge of the accused, if he considers the charge to be groundless. But he can only do this for reasons to be recorded. Here the only reason the Magistrate has assigned is the absence of the complainant. I agree that the reasons need not be recorded in any particular form. It would be enough if the reasons, which motivated the discharge, can be gathered from the order itself. But he must assign reasons in some form or the other. In other words, there must be substantial, material in the order to satisfy this court that the discharge order passed by the trial Court was based upon sound and proper foundation. The only reason which can be gathered from the order is that the complainant was absent. But that is not the complainant's fault. The complainant submitted an application on April 26, 1966, at about 9 a. m. , that as he was unaware of the morning hours of the Court, he could not put in appearance earlier. That apart, the absence of the complainant is not sufficient in cognizable and non-compoundable offences for the discharge of the accused. There is difference between a summons case and a warrant case. In a summons case under Section 247, Criminal P. C. , if the complainant is absent, the accused can be acquitted, but in a warrant case, Section 259, Criminal P. C. , would apply and the power to discharge the accused in the absence of the complainant is only given in compound-able and non-cognizable cases. The complaint filed by Shailesh Kumar for the offences under Sections 457, 341 and 380/ 114, I. P. C. , is neither compoundable, nor non-cognizable. Where the offence is neither compoundable, nor non-cognizable, Section 259, Cr. P. C. , does not apply. It may also be mentioned here that where, as here, the absence of the complainant was due to reasonable cause, the Magistrate ought not to have discharged the accused under sec 253 (2), Criminal P. C.
(3.)IN the result, the revision application is accepted, the impugned order of the court below is set aside and the trying Magistrate is directed to proceed with the trial according to law.

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