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1986 DIGILAW 334 (ORI)

AGADHU DAS v. BABAN PARIDA

1986-09-17

G.B.PATTANAIK, LINGARAJA RATH

body1986
L. RATH, J. ( 1 ) THIS revision has been referred to the Division Bench by order of Hon'ble Mr. J. K. Mohanty, J. (as he then was) on the question whether in a warrant case instituted upon a complaint, the accused persons can be discharged under 245 (2), Criminal P. C. if after repeated opportunity the complainant fails to produce any material evidence. ( 2 ) THE petitioner filed a complaint before the Sub-Divisional Judicial Magistrate, Bhubaneswar against the opposite parties on which 1. 00 No. 1 of 1977 was registered. The learned Sub-divisional Judicial Magistrate, Bhubaneswar took cognizance in the case on 19-1-1977 under Ss. 379 and 323, Penal Code and after examining the petitioner directed summons to be issued to the opposite parties for appearance. Thereafter several, dates of hearing were fixed with direction to the petitioner to bring his witnesses but however since after various adjournments the petitioner did not produce any witness, 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 under S. 245 (1), Criminal Procedure Code. " as has been stated in the order of the learned single Judge, the mention of S. 245 (1), Cr. P. C. is obviously a mistake for S. 245 (2), Criminal Procedure Code. ( 3 ) 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 under S. 245 (2), Cr. P. C. 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 under S. 249, Cr. P. C. but however the case at hand being neither compoundable nor non-cognizable, there was no discretion of the Magistrate to have discharged the accused. ( 4 ) ADMITTEDLY, S. 249 Cr. P. C. has no application to the facts of the case. P. C. but however the case at hand being neither compoundable nor non-cognizable, there was no discretion of the Magistrate to have discharged the accused. ( 4 ) ADMITTEDLY, S. 249 Cr. P. C. has no application to the facts of the case. The case being one of the offence also alleged under S. 379, I. P. C. , which is not compoundable and is cognizable, the powers of the Magistrate under S. 249, Cr. P. C. are not applicable. ( 5 ) THERE is however no warrant for the proposition that under S. 245 (2), Criminal P. C. a Magistrate is prevented in any way 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 would grant a premium to the complainant to prolong the harassment to the accused at his mercy. The position would of course be different where the complainant has sought for summons to be issued through court to the witnesses and when the witnesses 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 warrant against the witnesses directing their attendance in the court. In this view of the matter, there is no infirmity in the order of the Magistrate and the same cannot be interfered with. He also never moved the court for issue of warrant against the witnesses directing their attendance in the court. In this view of the matter, there is no infirmity in the order of the Magistrate and the same cannot be interfered with. ( 6 ) RELIANCE was placed on behalf of the petitioner on AIR 1968 AP 93 (Abdul Nabi v. Gulam Murthuza); AIR 1934 All 51 (Bhagwan Das v. Emperor); AIR 1948 Nag 341 (Uttamrao Shrinat Bhutakar v. Asru Banwanta Bhutekar), AIR 1917 Cal 525 (1) (V. R. Alexandar v. R. W. Connor), AIR 1966 Ker 243 (K. Gopala Panickar v. Kumaran Kesavan Nediyaplankalayila Yeadu) and the judgment in Criminal Revision No. 155 of 1967 reported in (1969) 35 Cut LT (Notes) 180 (Mahendar Singh v. Amar Singh) decided on 28th August, 1969. All these cases relate to the old Criminal Procedure Code where the provisions of S. 252 (2), which corresponds to S. 244 (2) of the present Code, were substantially different. Section 255 (2) of 1898 Code was 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 1974 Code runs thus :"the Magistrate may, on the application of the prosecution, issue a summons to any of its witnesses directing him to attend or to produce any document or other thing. "it would be seen that under the old Code a duty had been cast upon the Magistrate to ascertain, from the complainant or even otherwise, the names of the persons who are likely to be acquainted with the facts of the case and would 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 were rendered in the background of such a duty cast upon the Magistrate whereas in the new 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. Thus the decisions cited were rendered in the background of such a duty cast upon the Magistrate whereas in the new 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 was envisaged under the old S. 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 law seems to be one oriented towards mitigating undue harassment of the accused at the hands of unscrupulous complainants. ( 7 ) IN the result, the revision has no merit and is dismissed. ( 8 ) G. B. PATNAIK, J. : - I agree. Revision dismissed. .