KHATHIJABI Vs. P S ABDULLA

JUDGEMENT

(1.) This petition is directed against the order dated 22-9-1970 passed by the Additional First Class Magistrate, Bangalore, in C.C. No. 2555 of 1970 ordering that A-3 in the case is to be dropped from the proceedings and directing the complainant to proceed against the other accused persons i.e., A1, 2 and 4 at that stage. It is contended on behalf of the petitioner complainant that this order is on the face of it illegal and unsustainable in law. The few facts that have given rise to this petition may be narrated briefly as follows: Petitioner as a complainant filed a private complaint on 17-11-1966 in the court of the City Magistrate, Bangalore, against three persons alleging an office punishable under S.420 of IPC. Her complaint was that the said three accused persona, of whom the present responaent-1 was not one, and fradulentty secured her L.T.M. to a document which sue came to be miormed was a power or attorney and on the strength or tnat drew its. 10, 000 from the Lite insurance Corporation of india cut 01 the insurance sum insured by her husband. The learned Miagistrate recorded the sworn testimony of the petitioner complaiant and directed enquiry and report under the provisions of S. 156 (3) Cri.P.C. Thereafter, the police enquued into the matter and submitted their report in the form oi a charge-sheet. In that they had involved the present respondent-1 as A-3 and the remaining accused persons mentioned in that complaint as A-1, 2 and 4; on receipt of this report, the learned Magistrate issued process against all the four persons (including the present respondent No. 1). The present respondent-1 and two other accused appeared before the learned Magistrate, in response to the summons issued against them on 25-3-1969. The remaining accused was not traced and non-bailable warrant was issued. Ultimately on 23-8-1969 the learned Magistrate proceeded to dismiss the complaint under S.259 Crl.P.C. on the ground that the complainant was absent on that date. The records go to show that as against that order the petitioner-complainant preferred a revision petition in the Court of the Sessions Judge, Bangalore and that was allowed and the matter was sent back for trial. Ultimately, the case was transferred to the Court of the Additional First Class Magistrate, Bangalore, and there it was numbered as C.C. No. 2555 of 1970. The present respondent-1 continued to appear through his lawyer, and it appears that on 22-9-1970 the counsel appearing on behalf of respondent-1 put forward a contention before the learned Magistrate that in the original complaint filed by the petitioner-complainant, the present respondent-1 had not at all been mentioned as an accused and as such the proceedings against him should be dropped. The matter was argued and then ultimately the learned Magistrate ordered that A-3 be dropped from the proceedings.

(2.) The only reason given by the learned Magistrate, in support of his impugned order, is that the petitioner-complainant had not at all levelled any allegations in her complaint against the present respondent-1. The learned Advocate appearing on behalf of the petitioner vehemently contended that there is no provision in the Criminal Procedure Code by virtue of which a Magistrate can pass such an order of dropping proceedings in such matters. The learned Government Pleader supported this contention of the learned Advocate for the petitioner. The learned Advocate on behalf of Respondent-1 urged that the Magistrate had all powers and he, in the exercise of hip discretion, has passed the impugned order for a substantial reason mentioned by him and as such it cannot be said that the order is illegal.

(3.) In regard to the above contention, it must be observed that there is no provision in the Criminal Procedure Code empowering a Magistrate to drop proceedings against any oi the accused that too after taking cognizance of the offence complained. In this connection, it is seen that though the learned Magistrate ordered enquiry under S. 156(3) Crl.P.C. after recording the sworn testimony of the petitioner-complainant and the police submitted charge-sheet after such enquiry, that charge-sheet should be regarded as a report submitted by the police in pursuance of an order passed by the Magistrate under S. 202 Crl.P.C., and that in such cases the procedure provided under S. 252 Crl.P.C., would be applicable in regard to trial of the case. It is so laid down in the decision of this Court in K. V. Subbiah v. State of Mysore, (1968) Mys.L.J.604 It is, therefore, clear that in law the charge-sheet submitted by the police wherein they had stated that the present respondent-1 was also involved in the commission of the offence of which cognizance had already been taken by the learned Magistrate, is a report submitted by them as called for by the Magistrate under S. 202 Crl.P.C. In a trial under the provisions of S. 252 Crl.P.C., the only orders that can be passed by a Magistrate are: an order of discharge under S. 253 Crl.P.C., dismissal of the complaint under S.259 Crl.P.C. or judgment of conviction or acquittal. There is no provision to order dropping of proceedings against any particular accused. The order now in question is evidently not an order of discharge passed by the learned Magistrate by exercising powers vested in him under S.253 Crl.P.C., because nowhere has the learned Magistrate stated in his order that for the reasons mentioned by him he has found that the charge against the present respondent-1 who was A-3 before him, is groundless.