Satyananda Naik vs Bhaskar Naik and Others

D.P. Mohapatra, J.—The short question involved in this revision petition is whether in the facts and circumstances of the case, it was open to the court below to discharge the accused persons u/s 249, Code of Criminal Procedure.

On a partition of complaint filed by the Petitioner, ICC Case No. 123 of 1981 was initiated on 30th of March, 1981 by the Child Judicial Magistrate, Cuttack. On examination of the complainant the learned Magistrate took cognizance of offence under Sections 448/280 and 427, I.P.C. against the accused-opposite parties on the same day. On 10-8-1931 the case was transferred to the court of Shri A.K. Senapati. Magistrate, First Class for disposal. On 29-9-1981 when the case was posted for hearing there was no appearance for the complainant. An application for adjournment on the ground of illness of the complainant was filed. Since there was none to move the application, the learned court rejected the same and directed the complainant to get ready by 1 p.m. At 2 p.m. when the case was taken up none appeared for the complainant. The learned Magistrate directed the case to be called at 4 p.m. When there was still no appearance for the complainant, he passed the order dismissing the complaint for default and discharged the accused u/s 249, Code of Criminal Procedure Section 249, Code of Criminal Procedure reads as follows:

When the proceedings have been instituted upon complaint and on any day fixed for the hearing of the 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 herein before contained at any time before the charge has been framed, discharge the accused.

The sole ground on which the impugned order is challenged is that in view of the charges framed in the case u/s 249 of the Code had no application to the case and hence it was not open to the learned Magistrate to discharge the accused persons. In exercise of his powers under the said section. A bare reading of the section shows that the power to discharge under this section can be exercised in all non-cognizable offences, whether compoundable or not, and in all compoundable offence whether cognizable or not. In other words, the offences of which the accused persons are charged must be either compoundable or non-cognizable in order to attract the provisions of the section. When several offences are charged against the accused, it is necessary that all of them should be compoundable or non-cognizable in order that the section may apply.

Applying the aforesaid principles to the present case, cognizance was taken against the accused persons under Sections 448/380 and 427, I.P.C. Of these, Sections 448 and 427 are compoundable though not non-cognizable. Section 380, I.P.C. is neither non-cognizable nor compoundable. As such, requirements u/s 249, Code of Criminal Procedure are not satisfied so far as Section 380, I.P.C. is concerned. Therefore, it was not open to the learned Magistrate to discharge the accused persons u/s 249, Code of Criminal Procedure.

In the result, the revision petition is allowed, the impugned order discharging the accused persons u/s 249, Code of Criminal Procedure is set aside.