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2012 DIGILAW 179 (GAU)

Md. Makbul Hussain v. State of Assam

2012-02-09

I.A.ANSARI

body2012
JUDGMENT I.A. Ansari, J. 1. By making this application under Section 482, Cr PC, the petitioner has put to challenge the order, dated 21-01-2006, passed by the learned Judicial Magistrate, 1st Class, Hojai, Sankardevnagar, in Complaint Case No. 392 of 2004, under Section 380, IPC, whereby the learned Magistrate has dismissed the complaint on the ground of absence of the complainant. Heard Mr. A.K. Bora, learned counsel for the complainant- petitioner. None has appeared on behalf of the accused-opposite party. However, Mr. D. Das, learned Additional Public Prosecutor, Assam, appearing on behalf of the accused-opposite party No. 1, is present and he is heard too. 2. While considering the present application made under Section 482, Cr PC, it needs to be noted that on the basis of a complaint, which was made by the present petitioner, the Magistrate, having found that a prima facie case against the accused-opposite party had been made out under Section 380, IPC, directed issuance of summons against him by his order, dated 14-10-2004. As the summons could not be served on the accused-opposite party, the learned Magistrate passed an order, on 10-11-2005, directing issuance of warrant of arrest for Rs. 1,000/- to be issued against the accused-opposite party. When even the bailable warrant of arrest issued against the accused, could not be executed, the learned Magistrate passed an order, on 31-10-2006, for issuing non-bailable warrant of arrest against the accused with direction to the complainant to take necessary step. The complainant, as the LCR reveals, took the requisite steps and the warrant of arrest was issued against the accused. However, when the case came up for appearance of the accused on 21-01-2008, the complainant was absent and the learned Magistrate dismissed the complaint on the ground that the complainant was absent without any step and he (i.e., the complainant) had been absent for long. 3. It needs to be, now, pointed out that since the case at hand is a case under Section 380, IPC, which provides punishment for more than 2 years, the procedure to be followed is the procedure embodied in the Code of Criminal Procedure for the purpose of trial of warrant cases instituted otherwise than on police report. 3. It needs to be, now, pointed out that since the case at hand is a case under Section 380, IPC, which provides punishment for more than 2 years, the procedure to be followed is the procedure embodied in the Code of Criminal Procedure for the purpose of trial of warrant cases instituted otherwise than on police report. Section 244 (1), Cr PC makes is clear that in any warrant- case instituted otherwise than on a police report, when the accused appears or is brought before a Magistrate, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution. This shows that on the very day of the appearance of the accused, the Magistrate has the duty to proceed to hear the prosecution and take such evidence as may be produced by the prosecution in support of its case. 4. Thus, when, in the present case, the learned Magistrate has directed issuance of warrant of arrest, Section 244 (1) requires that on the appearance of the accused, the prosecution shall be heard and such evidence as may be produced by the prosecution, in support of its case, shall be recorded. 5. Bearing in mind the scheme of the Code as reflected by Section 244 (1) Cr PC, when one turns to Section 249, Cr PC, it can be seen that Section 249 Cr PC, reads as under : 249. Absence of complainant.--When the proceedings have been instituted upon complaint and any day fixed for the hearing of the case, the complainant is absent and the offence lawfully compounded or is not a cognizable offence, the Magistrate may in his discretion, notwithstanding anything herein before contained, at any time before the time has been framed, discharge the accused. 6. A bare reading of Section 249 shows that in any warrant case, when the date is fixed for hearing of the case and the complainant is absent, the Magistrate may, in his discretion, at any time before the charge has been framed, discharge the accused provided that the offence is one, which may be lawfully compounded or the offence is one, which is not a cognizable offence. In the present case, the offence, allegedly committed by the accused, being under Section 380, IPC, the same is not compoundable and when the offence allegedly committed by the accused, was not compoundable, the provision contained in Section 249, Cr PC, were inapplicable and without taking resort to the provisions contained in Section 249, the complaint could not have been dismissed. 7. Situated thus, it becomes clear that the impugned order, dated 21-01-2008, is contrary to the law and cannot be sustained. 8. In the result and for the reasons discussed above, the order, dated 21-01-2008, is hereby set aside and the complaint case is remanded to the learned Court below for disposal of the same in accordance with law. Send back the LCR.