Yashoda Nandan, J. - (1.) THE Applicant was prosecuted Under Para. 9 of the UP Cement Control Order, 1955 for breach of Para, 3 thereof.
(2.) AN application was made on behalf of the Applicant before the learned Magistrate on 4 -5 -1965, stating that even if the facts disclosed in the first information report, the charge sheet and the documents Under Section 173, Code of Criminal Procedure be taken at their face value and conceded to be correct, no offence against the Applicant was made out. From the application, it appears that the contention was that Clause 3 of the UP Cement Control Order comes into play only when cement is imported in a district, but the prosecution case being that the trucks carrying cement were intercepted and seized while they were still in district Garhwal, on the prosecution case itself no offence Under Clause 9 could be made out. The prayer made was as follows: It is therefore prayed, that after hearing the defence counsel, the court be pleased to decide the above crucial legal points which cut at the very root of the case, before proceeding further in the case. The law is well settled that question of jurisdiction and other legal factors that render the case a nullity should be taken and decided at the earliest stage to save the accused from unnecessary harassment and to save public time. After hearing the parties, the learned Magistrate passed an order on 14 -6 -1965, to the effect that once cognizance had already been taken and the accused had been ordered to be summoned he was bound to follow the procedure laid down in Ch. XX of the Code of Criminal Procedure for trial of summons cases. He took the view that the provisions of Section 241 of the Code of Criminal Procedure were mandatory and consequently when the accused had appeared he was bound to follow the procedure laid down in Section 242 of the Code of Criminal Procedure and the subsequent sections. The learned Magistrate was of the opinion that Chapter XX of the Code of Criminal Procedure did not contain any provision for discharge of the accused. Once cognizance had been taken and the accused had been summoned he was bound to carry on the proceedings to their logical consequences and to pass an order Under Section 245 of the Code of Criminal Procedure. The order of the learned Magistrate was upheld by the learned Civil and Sessions Judge, Garhwal. Learned Counsel appearing for the Applicant has contended that the learned Magistrate was under a misapprehension with regard to his powers and that even though there was no specific powers for an order of discharge, the learned Magistrate was competent to exercise powers Under Section 249 of the Code of Criminal Procedure and to pass an order which in substance would have the same effect as an order of discharge in my view, the contention has substance and must prevail. It was held by Falshaw, J. in Jagmal Raja v. The Grown : AIR 1950 P&H 83 that the wording of Section 249 of the Code of Criminal Procedure is very wide and can cover any set of circumstances in which a Magistrate thinks that the proceedings in a summons case ought not to be continued any longer. This was a case in which the accused had been summoned and had appeared. The learned Magistrate is not unjustified in the view he took that he had no specific power to discharge the Applicant at the stage when the application was made before him. Nonetheless had he felt satisfied that it was a fit case where proceedings should be stopped against the Applicant and he should be released, he had the power to do so Under Section 249. The learned Magistrate does not seem to have been conscious of his power to act Under Section 249 of the Code of Criminal Procedure.
(3.) THIS revision is consequently allowed and the order dated 22 -6 -1965, passed by the learned Civil and Sessions Judge, Garhwal and that of the learned Magistrate dated 14 -6 -1965, are set aside. It will be open to the learned Magistrate to decide whether on the facts of the instant case he would like to act Under Section 249 of the Code of Criminal Procedure or not. The stay order dated 11 -8 -1965, granted by this Court is vacated.;