M.H. Beg, J. - (1.) THIS is a revision application against the order passed by the Court of the Ladies Bench Magistrates IInd Class, Kanpur, discharging the accused opposite party in a case in which the applicant had filed a complaint against the opposite party No. 1 for an alleged offence Under Section 379/408 IPC. It was alleged by him that the opposite party was a servant employed by the complainant to help him to sell Kerosene Oil on daily wages of Rs. 1/8/ -. It is alleged that the opposite party was entrusted with a bag containing Rs. 55/ - one day and vanished suddenly. The complainant alleged that he then suspected that the accused may have also realised money due from his customers and found out after inquiries that this suspicion was well founded. He produced three customers from whom the money was said to have been wrongfully realized by the opposite party and also two witnesses before whom the bag of money was said to have been handed over to the opposite party. The Bench Magistrate came to the conclusion after examining the evidence tendered Under Section 252 of the Code of Criminal Procedure, that no case was made out against the opposite party. A revision application filed by the complainant was dismissed by the Addl. Distt. Magistrate , Kanpur. The complainant has, therefore, come up in revision to this Court.
(2.) IT is being argued that the Bench did not consider all the evidence tendered Under Section 252 of the Code of Criminal Procedure and has made no reference to the evidence of Mohammad Rafiq (P.W. 5) and Munne (P.W. 4) before whom the bag of money was said to have been handed over. It was also pointed out that the order of the discharge was based upon grounds which may be proper for an order of acquittal, but not for a discharge. It was argued that a discharge can take place when, on the prosecution evidence, no case can be made out against the accused. It is true that the Bench has held that no case had been made out under the sections relied upon by the complainant. But, I find that all the grounds given for coming to this conclusion are of a nature which could raise doubts about the credibility of the prosecution version. The argument advanced on behalf of the complainant is that such grounds should only properly be considered after the whole evidence has been examined. In as much as no charge was framed against the accused, the evidence which was to be given Under Section 256 of the Code of Criminal Procedure was not before the Bench concerned. The language of Section 251(?)(254) of Code of Criminal Procedure does suggest that it is only a prima facie case which has to be made out by the prosecution before framing of the charge. It is only when a prosecution case is such that it does not even need to be rebutted that a discharge can be ordered Under Section 251(1)(?) [253(1)] Code of Criminal Procedure. For a discharge Under Section 253(2) of Code of Criminal Procedure, the finding has to be that the charge is actually "groundless". In cases in which there is evidence which may, if believed, provide a basis for conviction, it is proper that a charge should be framed and the evidence if unworthy of belief, may then be rejected and the accused may be acquitted. In the present case, where the Bench concerned has not referred to some evidence at all and has not given sufficient reasons to support the conclusion that no case has been made out against the accused persons, the order of discharge seems to be improper.
(3.) I , therefore, allow this application, set aside the order of discharge and remand the case for retrial by another Bench.;