Diwan Singh and Others vs Manohar Singh

V.P. Mathur, J.—This matter concerns a criminal complaint filed on 17-3-1976 with respect to an incident which allegedly took place more than five years earlier in January, 1971. The complaint purported to be Under Sections 420, 418 and 406 read with Section 34 of the Indian Penal Code. It was dismissed for absence of the complainant by the learned Magistrate on 3-11-1982. Then a criminal revision was filed on behalf of the complainant and the judgment dated 5-1-1983 clearly shows that although the complainant did not-appear even on that date, the learned Sessions judge proceeded with the decision of the matter on merit with the help of the Learned Counsel for the State. The revision was allowed.

The order of the learned Sessions Judge raises an interesting point of law for consideration. He has come to the conclusion that the learned Magistrate while dismissing the complaint on 5-11-1982, made a mention of the fact that his order was being passed u/s 245 of the Code of Criminal Procedure and the view of the learned Sessions Judge is that Section 245 Code of Criminal Procedure was not applicable to this case. There can be no dispute with the correctness of this view. A fairly detailed order was passed by .this. Court on 6-5-1988 considering all the aspects of the matter, with a view to verify whether in this case at any stage, charge had been framed, because that was important aspect of the matter to be considered.

Section 245 Code of Criminal Procedure will apply only to a case in which all the evidence referred to in Section 245 Code of Criminal Procedure is taken and then the Magistrate records reasons for coming to the conclusion that no case is made out against the accused which if unrebutted would warrant his conviction. It is apparent that in this case, these proceedings have not been gone into. No evidence was taken. There is no conclusion by the learned Magistrate in writing, for reasons to be given that any case is made out at all. Hence the order of the learned Magistrate cannot be deemed to be one u/s 245 of the Code of Criminal Procedure and wrong mention of the section will not attract the application of this provision of the law.

Then the other section of the Code of Criminal Procedure, which can apply to this case, would only be Section 249. For it the Court will have to come to a conclusion whether the ingredients of the section were made out in this case and whether there was any charge already framed, because in that event Section 249 Code of Criminal Procedure would not be attracted. The main ingredients of this section are:

(i) The proceedings should have been instituted upon a complaint;

(ii) On the date of hearing, the complainant should be absent;

(iii) The offence should be lawfully compoundable or such as is not a cognizable offence; and

(iv) The order of discharge should be passed only before the framing of charge;

All the four ingredients are present in the present case. It is a case on complaint. On the date of hearing, it was dismissed for the absence of the complainant on 5-11-1982. No charge has yet been framed. The offences Under Sections 406, 418 and 420 of the Indian Penal Code are all lawfully compoundable with the permission of the Court and as such Section 249 of the Code of Criminal Procedure will be squarely applicable to the case. That being so, the learned Sessions Judge has made a mistake in coming to the conclusion that since a mention of Section 249 Code of Criminal Procedure has not been made by the learned Magistrate in his order of dismissal, hence it should be taken that he has not taken recourse to the provision of the law. I need not re-state that wrong mention of a provision of the law will not in any way effect the legality or otherwise of the order passed and it will have to be judged in accordance with the provisions of the law actually applicable.

It may also be mentioned here that the occurrence took place in the year 1971 and to-day when the revision is being disposed of more than 17 years have elapsed since the occurrence took place and it will not be proper to direct the case back for re-trial after such a long lapse of time.

This being so, the revision is allowed. The order passed by the Sessions Judge of Kanpur on 5-1-1983 is set aside and the order of the learned Magistrate passed on 5-11-1982 is restored.