Decided on December 15,1983



- (1.)BY the impugned order passed in a warrant-case instituted upon a complaint, the learned Magistrate has acquitted the accused on the ground of non-appearance of the complainant. This being a warrant-case, an acquittal could only be ordered after the charge was framed; but as no charge was framed before the impugned order of acquittal was passed, the order must and cannot but be treated as an order of discharge, by which alone an accused in a warrant-case can be released therefrom at apprecharge stage, whether under Section 253 or Section 259 or, say, Section 494 (a) of the Criminal P. C. 1898, that being the Code still applying in Sikkim. In fact, both Mr. N. B. Kharga, the learned Public-Prosecutor, and Mr. A. Moulik, the learned Advocate appearing for the accused-respondent, have attempted to support the order as being one of discharge under Section 259 as no order of acquittal could in any way be passed in this Case at that stage when witnesses or the complainant were still being examined and the date when the impugned order was passed was also fixed for examination of further witnesses and the learned Magistrate was yet to consider the question of framing of charge. Nor any of the learned Counsel for the respondents has urged that the impugned order having been recorded as one of acquittal, no revision would lie because of the prohibition contained in Section 439 (5) of the Code, whereunder existence of a right to appeal against an order of acquittal operates as a bar to move the High Court in revision. If the learned Magistrate had jurisdiction to order acquittal in this case at this stage, then such an order, even if bad in law or on facts or on both, would not have been open to revision, if an appeal was available. But if the order of acquittal, as such, is absolutely beyond the jurisdiction of the Court and ultra vires its legal competence in the sense that the Court had no power under the law to pass such an order, the order cannot stand in the way of any revision, and the order of release in such a case is to be treated as one of discharge, which the learned Magistrate could pass under Section 259. At any rate, this question need not also be pursued as any challenge to the impugned order, whether by way of appeal or of revision, would lie to this Court only and any intervention that this case may require would be within the competence of this Court, whether sitting in appeal or in revision.
(2.)BUT even treating the impugned order as one of discharge, as unanimously urged by the learned Counsel for all the parties, can it be justified under the provisions of Section 259, which alone provides for such discharge of accused on the ground of absence of the complainant? Section 259 reads thus:
Absence of Complainant-When the proceedings have been instituted upon complaint, and upon any day fixed for the hearing of the case the complainant is 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 is framed, discharge the accused.

(3.)THE expression "the offence may be lawfully compounded, or is not a cognizable offence" in Section 259 has given rise to some difference of opinion on the question as to whether both the conditions of the offence being compoundable as well as being non-cognizable must be satisfied before this Section can be invoked. An offence may be compoundable and yet cognizable, e. g. , offence under Section 447, or Section 448, Penal Code. And again an offence may be non-compoundable and yet non-cognizable, e. g. , offence under Section 465, or Section 466, Penal Code. One view is that because of the word "or" used disjuncting the expression "may be lawfully compounded" and the expression "is not a cognizable offence", the two conditions must also be understood disjunctively and the fulfilment of either of the two conditions would be sufficient to attract the provisions of Section 259 and that both the conditions as to the offence being compoundable as well as non-cognizable need not co-exist for the application of this Section. The other view is that the expression "or" in the context of Section 259 is to be construed to have a conjunctive connotation and therefore Section 259 can only operate when both the conditions are satisfied, that is, when the offence is compoundable as well as non-cognizable. For this latter view, reference may be made to the decision in Uttamrao Shripat v. Asru Hanwanta AIR 1948 Nag 341 1948-49 Cri LJ 519, where Vivian Bose, L, (as his Lordship then was) observed (at 342) that "the absence of the complainant is not sufficient in cognizable and non-compoundable cases under Chapter 21" and that "in warrant-cases Section 259 applies and the power to discharge the accused in the absence of the complainant is only given in a compoundable and non-cognisable case". It must, however, be noted that in this case the offence having been both non-compoundable and cognizable, the question as to whether the two conditions of compoundability and non-cognizability are cumulative or alternative did not arise for consideration and was also not considered in fact. For the former view, reference first should be made to the decision in Shankar Dass v. Mahu Ram where the learned Judicial Commissioner, after an elaborate discussion of the question, dissented from the decision in Uttamrao Shripat (supra) and observed (at 34) that the interpretation of this section whichis both obvious and in conformity with the intent of the Legislature is that the power conferred by it may be exercised with reference to all compoundable offences, whether cognizable or not and all non-cognizable offences, whether compoundable or not" (emphasis added ). This decision has been relied on by a learned single-Judge of the Bombay High Court in Ganesh Narayan v. Eknath 1978 Cri LJ 1009 at 1011 and also by a learned single-Judge of the Orissa High Court in Kanhei Pradhan v. Basanti 1981 Cri LJ 266 at 267, while construing Section 249 of the new Criminal P. C. of 1973, which is virtually a reproduction, with negligible verbal change, of this Section 259 of the Criminal P. C. 1898, by which we are governed in Sikkim.

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