Agadhu Das vs Baban Parida and Others

L. Rath, J.—This revision has been referred to the Division Bench by order of Hon''ble Mr. J. K. Mohanty J. (as he then as) on the question whether in a arrant case instituted upon a complaint, the accused persons can be discharged u/s 245(2), Criminal Procedure Code, is after repeated opportunity the complainant fails to produce any material evidence.

The petitioner filed a complaint before the Subdivisional Judicial Magistrate, Bhubanes ar, against the opposite parties on which ICC No. 1 of 1977 as registered. The learned Subdivisional Judicial Magistrate, Bhubanesar, took cognizance in the case on 19-1-1977 Under Sections 379 and 323, Indian Penal Code, and after examining the petitioner directed summons to be issued to the opposite parties for appearance. Thereafter several dates of hearing are fixed ith direction to the petitioner to bring his itnesses but however since after various adjournments the petitioner did not produce any itness, the learned Magistrate recorded an order on 29-11-1979 as follows :

"Even after repeated opportunities complainant had failed to produce any material evidence to frame charge, The accused persons are discharged u/s 245(1), Criminal Procedure Code."

As has been stated in the order of the learned Single Judge, the mention of Section 245(1), Criminal Procedure Code, is obviously a mistake for Section 245(2), Criminal Procedure Code.

The order passed by the learned Magistrate is assailed before us on the ground that the Court had no jurisdiction to discharge the opposite parties u/s 245(2), Criminal Procedure Code and that the Court should have adopted the coercive process to secure attendance of the witnesses and having failed to do so, the order should be set aside the records sent back to the lower Court for the opposite parties to stand their trial. It is urged that such an order as has been passed by the learned Magistrate could only be passed u/s 249, Criminal Procedure Code, but however the case at hand being neither compoundable nor non-cognisable, there as no discretion of the Magistrate to have discharged the accused.

Admittedly, Section 249, Criminal Procedure Code has no application to the facts of the case. The case being one of the offence also alleged u/s 379, Indian Penal Code, hich is not compoundable and is cognisable, the po ers of the Magistrate u/s 249, Criminal Procedure Code are not applicable.

There is however no arrant for the proposition that u/s 245(2), Criminal Procedure Code a Mggistrate is prevented in any ay from discharging the accused at any previous stage prior to taking all the evidence, if he comes to the conclusion, for reasons to be recorded, that he considers the charges to be groundless. If in any particular case, as has happened here, the complainant fails to produce the witnesses for which he has assumed responsibility, and the case is dragged on due to such successive lapses of the complainant, there is nothing inherently unreasonable in the Magistrate coming to the conclusion that the charge is groundless and that the accused persons be discharged. To hold the contrary should grant a premium to the complainant to prolong the harassment to the accused at his mercy. The position should of course be different here the complainant has sought for summons to be issued through Court to the witnesses and hen the itnesses do not appear, he moves the Court for issue of coercive process for their attendance, But the case at hand is different inasmuch as the complainant had taken the responsibility to produce the witnesses. He also never moved the Court for issue of arrant against the witnesses directing their attendance in the Court. In this vie of the matter, there is no infirmity in the order of the Magistrate and the same cannot be interfered with.

Reliance as placed on behalf of the petitioner on Abdul Nabi Vs. Gulam Murthuza Khan and Another, , Bhagwan Das Vs. Emperor, , Uttamrao v. Asru Hanwanta , AIR 1917 Cal. 525 ( V R. Alexander v. R. . Connor and others), K. Gopala Panicker Vs. Kumaran Kesavan Nediyaplankalavila Veedu and Others, and the judgment in Criminal Revision No. 155 of 1967 reported in 1979 CLT (2) Notes 180 (Mahendar Singh v. Amar Singh and another) decided on 28th August, 1969. All these cases relate to the old Criminal Procedure Code here the provisions of Section 252(2), hich corresponds to Section 244(2) of the present Code, are substantially different. Section 255(2) of 1898 Code as as follows :

"The Magistrate shall ascertain, from the complainant or otherwise, the names of any persons likely to be acquainted with the facts of the case and to be able to give evidence for the prosecution, and shall summon to give evidence before himself such of them as he thinks necessary "

Section 244(2) of 1973 Code runs thus :

"The Magistrate may, on the application of the prosecution, issue a summons to any of its itnesses directing him to attend or to produce any document or other thing".

It should be seen that under the old Code a duty had been cast upon the Magistrate to ascertain, from the complainant or even other wise, the names of the persons no are likely to be acquainted with the facts of the case and should be able to depose in the Court in support of the case and the Magistrate had also the duty to summon such persons to depose before the Court. Thus the decisions cited are rendered in the background of such a duty cast upon the Magistrate hereas in the Penal Code there is no such duty upon the Magistrate and he is only to issue summons to such witnesses as may be applied for by the prosecution. In the absence of a responsibility as envisaged under the old Section 252(2), there is no reason which can restrict a Magistrate to decide upon the bona fides of the complaint on the basis of the conduct of the complainant in his failure to produce any evidence, and to discharge the accused. The change in the la seems to be one oriented to ards mitigating undue harassment of the accused at the hands of unscrupulous complainants.

In the result, the revision has no merit and is dismissed.

G.B. Pattnaik, J.

I agree.