J.P.Chaturvedi - (1.) THIS is an appeal by the State against an order passed by the Sub-Divisional Magistrate, Saharanpur dated 4-9--1972 discharging the respondent.
(2.) THE facts giving rise to this appeal are that Rakha made an F.I.R. at P. S. Fatehpur in district Saharanpur on '5-2-1971 at 7.30 a.m. to the effect that on the night between 4/5-2-1971 at 4 a. m. Salim, Alauddin, Doctor and Arshad set fire to his thatch in which Akhtar and Zaffar were sleeping and four bullocks were tethered and thereby caused demage to him for Rs. 2000/-. It appears that Fatehpur Police after investigation of the case came to the conclusion that the F. I. R. was false and groundless. Accordingly on 9-3-71 the Fatehpur police submitted a report to the learned S. D. M. Saharanpur for prosecuting the complainant Rakha of an offence under Section 182 IPC. Rakha was accordingly summoned by the learned Magistrate and the prosecution was directed to furnish him copies of the statements of the witnesses. The learned Magistrate gave as many as four opportunities to the prosecution for furnishing the copies of the statements made by them during investigation but the prosecution failed to do so. The learned Magistrate thereupon passed an order discharging the respondent. The contention on behalf of the appellant is that the order of the learned Magistrate was illegal and unsustainable. The case was a warrant case started on the report of the police and as such the provisions of Section 251-A of the Code of Criminal Procedure, 1898 would be applicable. According to sub-section (1) it is incumbent upon the Magistrate to get the documents referred to in Section 173 to be furnished to the accused. Subsection (2) provides-"If, upon consideration of all the documents referred to in Section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge him."
(3.) AN order under sub-section (2) for discharging the accused could be passed by the trial court only if the following three conditions were fulfilled : (i) the documents referred to in Section 173 of the Code of Criminal Procedure have been considered ; (ii) examination of the accused if the Magistrate considers it necessary and (iii) prosecution and the accused have been given an opportunity of being heard. In the present ease the question of consideration of documents referred to in Section 173 did not arise inasmuch as the same were not made available to the learned Magistrate. But the learned Magistrate could, if he thought it necessary, examine the accused. He should have heard the prosecution and the accused before passing the order of discharge. The last condition mentioned above has not been fulfilled in this case although examination of the accused may not be necessary. The learned Magistrate, was therefore, not within his jurisdiction tec pass an order discharging the accused.;