- (1.) KUNDAN Singh, J. In the proceedings of the complaint case No. 143 or 1985 under Sections 323, 504 and 506, I. P. C. The ac cused- applicants moved an application 12/kha for their discharge under Section 245, Cr. P. C. The learned Magistrate found that the complainant had already been transferred from the place of occurrence on 8-10-1984 hence he could not be expected to be present on 18-1-1985. On the date of hearing i. e. 28-10-1985 the complainant was found absent while the applicants pressed their application for discharge. The learned Magistrate after considering the material on record discharged the accused- ap plicants under Section 245, Cr. P. C. Being aggrieved, the complainant preferred Criminal Revision No. 230 of 1985 before the Sessions Judge, Jalaun at Orai. The learned Sessions Judge found that the order of discharge passed by the learned Magistrate was not in accordance with law. He accordingly allowed the revision vide order, dated 17-8-1988 setting aside the order of discharge dated 28-10-1985 passed by the learned Magistrate.
(2.) THE list has been revised. No body is present on behalf of the complainant. Heard the learned counsel for the ap plicants and the learned A. G. A. for the State and perused the relevant papers. The main contention of the learned counsel for the applicants is that under Section 249, Cr. P. C. in the absence of com plainant the complaint can be dismissed and the accused can be discharged before fram ing of the charge provided the offence is lawfully compound or is not a cognizable offence. In the present case the complaint was filed under Sections 323, 504 and 506, I. P. C. All the three offences are not cog nizable offences. The Magistrate has exer cised his discretion. Though the complaint has not been dismissed under section 249, Cr. P. C. but it was dismissed under Section 245, Cr. P. C. I have examined the submission of the learned counsel for the applicants. It is true that in the present case the complaint was dismissed on the day when the com plainant was not present and the learned Magistrate believed the evidence of the ac cused which, in his opinion, was sufficient to discharge the applicants as the complainant could not be present on the day of the inci dent and had already been transferred to some other place. The plea taken by the learned counsel for the applicants here is a legal plea which can be considered and the complaint in the absence of the com plainant was liable to be dismissed discharg ing the applicants. In view of the provisions of Section 249, Cr. P. C. The complaint was liable to be dismissed. Though the learned Magistrate was justified in discharging the accused under Section 249, Cr. P. C. but it was not proper for him to discharge the accused on the plea raised by the accused at that stage.
(3.) ACCORDINGLY the revision is allowed and the order passed by the learned III Addl. Sessions Judge, Jalaun at Orai dated 17-8-1988 in criminal revision No. 230 of 1985 is set aside and the order passed by the learned Magistrate is maintained. Revision allowed. .;