- (1.) On the complaint of the Petitioner the opposite parties were summoned under Section 406 of the Indian Penal Code. Four witnesses were examined for the prosecution, two on September 18, 1970, and two on November 4, 1970. Thereafter there were several adjournments at the instance of the Petitioner and the case was fixed for further evidence on March 16, 1971. On that date the Petitioner was absent and the learned Magistrate made this order: it is presumed that the complainant is reluctant to proceed further with the case. Hence the accused persons are discharged. The Petitioner has now obtained this Rule against this order of the learned Magistrate.
(2.) Clearly, the order cannot be sustained. Presumably the order of discharge is under Section 253(2) of the Code, but the learned Magistrate forgot that four witnesses had already been examined and before he could discharge the opposite parties under Section 253(2) of the Code he had to consider the evidence of those four witnesses and then discharge the opposite parties if he found that the charge was groundless. But the learned Magistrate has not done this in this case and he has made the order of discharge without consideration of the materials on record.
(3.) In the result, the Rule is made absolute. The order of discharge is set aside and the case sent back to the learned Magistrate for proceeding with the trial in accordance with law. He will now fix a firm date for further prosecution evidence and then proceed in accordance with law.;