Hukum Singh and Others vs State of U.P. and Another

Kundan Singh, J.—In the proceedings of the complaint case No. 143 of 1985 under Sections 323, 504 and 506, I.P.C., the accused-applicants moved an application 12/Kha for their discharge u/s 245, Code of Criminal Procedure. 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-applicants u/s 245, Code of Criminal Procedure. Being aggrieved, the complainant preferred Criminal Revision No. 230 of 1985 before the Sessions Judge, Jalaun at Oral. 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.

The list has been revised. Nobody is present on behalf of the complainant. Heard the learned Counsel for the applicants 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 u/s 249, Code of Criminal Procedure in the absence of complainant the complaint can be dismissed and the accused can be discharged before framing 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 cognizable offences. The Magistrate has exercised his discretion. Though, the complaint has not been dismissed u/s 249, Code of Criminal Procedure but it was dismissed u/s 245, Code of Criminal Procedure.

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 complainant was not present and the learned Magistrate believed the evidence of the accused which, in his opinion, was sufficient to discharge the applicants as the complainant could not be present on the day of the incident 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 complainant was liable to be dismissed discharging the applicants. In view of the provisions of Section 249, Code of Criminal Procedure, the complaint was liable to be dismissed. Though, the learned Magistrate was justified in discharging the accused u/s 249, Code of Criminal Procedure but it was not proper for him to discharge the accused on the plea raised by the accused at that stage.

Accordingly, the revision is allowed and the order passed by the learned II Ird Addl. Sessions Judge, Jalaun at Oral, dated 17.8.1988 in Criminal Revision No. 230 of 1985 is set aside and the order passed by the learned Magistrate is maintained.