Bhagwan Das Gupta, J. - (1.) The applicant, Gopal Prasad, had filed a complaint against the opposite parties to this revision, complaining of offences punishable u/Ss. 457 and 379, IPC. The statement of the complainant was recorded, and it appears that some evidence u/S. 202 of the CrPC had also been taken. On the 22nd of May, 1969, the learned Magistrate passed an order summoning the opposite parties to meet allegation of offences punishable u/Ss. 380 and 379, IPC. The 20th of June, 1969, was fixed for the purpose. On the 20th of June, 1969, the accused as well as the complainant and his counsel appeared; but the case was adjourned for evidence, before the framing of the charge, to the 5th of August, 1969, on which date the following order, which is sought to be revised by this petition, was passed: - - Gopal complainant is absent. Accused Vidya Dhar, Deo Dutt and Ram Dutt are present. Attendance of accused Narain Dutt has been dispensed with. The complainant is absent without any application. Even his counsel has not come. Complaint is dismissed and accused are discharged. The same day, an application in revision against the aforesaid order was filed in the court of the ADM (J) That revision having been dismissed on the 1st of November, 1969, the present revision was filed in this Court. The only contention raised by the learned counsel for the complainant -applicant is that the order quoted above is not warranted by any provision in the CrPC. This contention appears to be well founded. There is no controversy that the trial had to be conducted in accordance with the provisions contained in Ch. XXI of the CrPC (hereinafter referred to as the 'Code'), laying down procedure for the trial of warrant cases. Further, there is no controversy that the offence punishable u/S. 380, IPC, is cognizable and non -compoundable. That being so, the order in question cannot be supported as falling within the provisions contained in S. 259 of the Code, and the only question is as to whether the said order can be sustained by the provisions contained in S. 253 of the Code. After hearing learned counsel and considering the authorities bearing on the subject, I am of the opinion that the provisions contained in S. 253 do not warrant the order in question.
(2.) The learned ADM (J) whilst recording his intention to advise the Magistrate concerned not to dismiss complaints at 11 A.M., and to wait for the arrival of the parties till after lunch was over, has sustained the order by deeming it as one falling within the second clause of S. 253 of the Code, which runs as follows: - - Nothing in this Sec. shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if for reasons to be recorded by such Magistrate, he considers the charge to be groundless. The learned ADM took the view that the complainant appeal's to have absented 'himself deliberately and proceeded, thereafter, to hold that, that being so and the complainant having failed to produce any evidence accusations leveled in the complaint should be deemed to be groundless and, therefore, it should be deemed that the dismissal of the complaint fell u/S. 253(2) of the CrPC.
(3.) I am unable to accept the reasoning of the learned ADM. The question as to whether the charge was groundless is a question which depended on the state of material on record. There is nothing in the order, sought to be revised by this petition, to indicate that the learned Magistrate had in mind the material on record much less that he applied his mind to that material and came to the conclusion that the charge was groundless. Cl. (2) of S. 253 of the Code requires that, in case the, trying Magistrate decides to discharge the accused on the view that the charge is groundless, he must record his reasons. It is manifest that the intention of the framers of the Code was that an order u/cl. (2) of S. 253 of the Code can be passed only in case, after considering the material on record, the Magistrate arrives at the conclusion that the charge is groundless, and, further, that the reasons for such a conclusion must be recorded by the Magistrate concerned. In the present case, the order of the learned Magistrate quoted earlier makes it manifest that the only ground, upon which he dismissed the complaint and discharged the accused, was the absence of the complainant's counsel. This by itself was wholly insufficient to justify an order dismissing the complaint and discharging the accused.;