Ningappa Keludappa vs Rayan Gowda Ramanagowda and Others

This revision raises a short point of law regarding the scope and ambit of the powers of the Magistrate in making an order of discharge under Sec. 249 Cr.P.C. on the complainant remaining absent when the case is called for hearing.

It arises in this way:

The Petitioner Ningappa Talwar being the father of Venkawwa who is said to be the first wife of Respondent-1 Rayanagouda Ramanagouda Goudra, presented a complaint before the Prl. Munsiff and J.M.F.C. Bagalkot, alleging inter alia, that while respondent No. 1 had taken respondent No. 2 Renawwa in second marriage during the lifetime, of the first wife Venkawwa, while the first marriage still subsisted, the other respondents 3 to 37 had brought about the marriage between them knowing that Venkawwa, the first wife, was still alive and thereby respondents 1 to 37 had committed an offence of bigamy punishable under Sec. 494 and r/w Sec. 109 IPC.

On the said complaint the learned Magistrate took cognisance of offence, recorded the sworn statement of the complainant, and issued process against all the respondents. When all the respondents appeared before the Court, he adjourned the case to 28-11-1978 for inquiry. In the mean-while, the case was transferred to the Addl. Munsiff and J.M.F.C. Bagalkot. It is not clear from the records whether this transfer of the case was notified to the complainant and the accused persons. But on 28-11-78 when the case was taken up before the Addl. Munsiff and J.M.F.C. many of the accused remained absent. On the request of the Advocate appearing for them, the learned Magistrate exempted their presence on that day. The complainant and his Advocate being absent, the learned Magistrate proceeded to make an order discharging the accused-respondent of the charge levelled against them. The order reads as follows:

"Complainant called-thrice at 12-15 p.m. found absent. Advocate of the complainant is also absent. U/s. 249 Cr.P.C. I discharge all the accused persons. Case be closed."

Coming to know of the said order on 1-12-1978 the complainant made an application for restoration of the case on the ground that he was not keeping well and he was therefore prevented from appearing before the Court on 28.11.78 when the case was called for hearing. The learned Magistrate relying upon the decision in Bhagawan Sahai v. Motilal, AIR 1953 All. 402, held that he had no jurisdiction to restore the case and dismissed the application. The complainant having thus felled in his attempt to get the master restored, has now come in revision before this Court, questioning the correctness of the very order of discharge dated 28.11.1978 made by the learned Magistrate.

Sri M.C. Konnur, learned Counsel appearing for the petitioner argued, not only the learned Magistrate was wrong in refusing to restore the case on an erroneous view of the law but he was wholly wrong in making an order of discharge, because the complainant was absent, particularly when the case was transferred and was called before the Addl. Munsiff and J.M.F.C. for the first time, after the transfer and the order of discharge under revision, therefore, deserved to be set aside.

Sri Dattatraya Bhat, learned counsel appearing for the respondents, on the other hand, argued, there being no provision made in the Code for restoration or for revival of the case ending in discharge under Sec. 249 Cr.P.C., the learned Magistrate was perfectly justified in refusing to restore the case. He also further maintained that the learned Magistrate had committed no material illegality or irregularity by making an order of discharge on the complainant remaining absent when Sec. 249 Cr.P.C. empowered the Magistrate to do so and therefore, there was no merit in the revision.

There is some controversy whether the Magistrate has powers to restore when the complaint is dismissed for default or where an order of discharge is made under Sec. 249 Cr.P.C. While some High Courts have taken the view that the Magistrate has no such powers to restore the complaint ending in dismissal or reviving the case ending in discharge under Sec. 249 Cr.P.C. the view taken by this Court in Rayappa v. Shivamma, AIR 1964 Mys 1, is that the Magistrate has powers to restore the case. However that may be, it is unnecessary to go into that question in this case, since the revision is directed against the very order of discharge made under Sec. 249 Cr.P.C., and not against the order refusing to restore the case.

Therefore, the question that requires to be considered is what is the scope and ambit of the power of the Magistrate under Sec. 249 Cr.P.C., The Section reads as follows.

"249. When the proceedings have been instituted upon complaint, and on any day fixed for the hearing ofthe case, the complainant is absent, and the offence may be lawfully compounded or is not a cognizable offence, the Magistrate may, in his discretion notwithstanding anything hereinbefore contained, at any time before the charge has been framed, discharge the accused"

A plain reading of the Section will show that the scope of the section is limited in its application only to the cases instituted on private complaints, and in respect of compoundable and non-cognizable offences. The provisions are also not mandatory. The words "the Magistrate may, in his discretion'' used in the Section go to show that the provisions are merely directory, there is wide discretion left to the Magistrate to make or not to make an order of discharge, on the complainant remaining absent on the date fixed for hearing of the case. However, this discretion has to be exercised, by the Magistrate on sound principles and not arbitrarily. The Magistrate should notmechanically proceed to make such an order discharging the accused merely on the complainant remaining absent. It is neither possible nor desirable to lay down, as a general rule of universal application how the Magistrate should exercise his discretion in making such an order of discharge. There may be cases, for instance, where the complainant is not diligent in prosecuting the case or it is made to appear that his absence on the date fixed for hearing is deliberate and his presence is absolutely necessary for the further progress of the case, the Magistrate would be perfectly justified in making an order of discharge.

Here in the instant case, there is no doubt the offence alleged being compoundable and non cognizable, S. 249 of the Code was attracted. But there is not even any distant suggestion from the other side that the complainant was guilty of laches, or not diligent in prosecuting the case. As a matter of fact, Sri Dattatreya Bhat conceded, the proceedings do not show that the complainant or his Advocate had notice of the transfer of the case from the file of the Prl. Munsiff and JMFC., to the, file of the Addl. Munsiff and J.M.F.C. That being so, it appears, it was not proper for the Magistrate to make an order of discharge. He would have been well within his powers if he had adjourned the case to a future date instead of making such an order of discharge.

It was argued by Mr. Dattatreya Bhat that the order of discharge made by the Magistrate did not come in the way of the complainant making a fresh complaint for the same offence, therefore, it was unnecessary to interfere with the order made by the Court below in exercise of the revisional powers. It may be that such a remedy by a fresh complaint was available to the petitioner (complainant), but that does not come in the way of this court entertaining the revision under Sec. 397 Cr.P.C. and setting aside the order of discharge.

The revision is therefore allowed. The order of discharge dated 28.11.1978 passed by the Magistrate in C.C.No. 390/1978 is set aside and the case is remitted back with a direction that the Chief Judicial Magistrate, Bijapur, by himself make a further inquiry into the case against the accused respondents or direct any of the subordinate Magistrates to make such further inquiry into the case and to dispose of the same in accordance with law.