STATE OF KARNATAKA Vs. DURGAPPA

JUDGEMENT

(1.) This is a reference made by the Sessions Judge, Raichur, under S.438, CrlPC, in CrlRP.25/1973 on his file, for quashing the order dt-6-7-1973 passed by the I.Class Magistrate,, Manvi, in CC.677/1972 rejecting the application of even date filed by the Public Prosecutor for reviving the pror ceedings in that case stopped under S.249 CrPC on 18-6-1973.

(2.) Briefly stated, the facts leading to this reference are: The Sub-Inspector of Excise, Kowtal, prosecuted the respondent Durgappa for offences under Ss.32 & 34 of the Karnataka Excise Act, 1965, in CC.677 72 on the file of the learned Magistrate. In that case 3 witnesses for the prosecution ware, examined on 13-4-1973 and in addition some documents and material objects were also marked as exhibits and MOs. Then the case was adjourned to 12-6-1973 for further evidence by the prosecution. On 12-6-73, the remaining witnesses for the prosecution were not present and on the representation made by tho Public Prosecutor that he would keep them present on the next date of hearing, the case was adjourned to 18-6-73. Since the remaining witnesses were not present on 18-6-1973 also, the learned Magistrate acting under Section 249 CrPC, stopped all further proceedings and directed the release of the respondent-accused who was in custody. The reason the learned Magistrate gave for so acting was that the respondent-accused was an old man of 70 years and he was in custody since 12-6-1973. Then on 6-7-1973, the Public Prosecutor filed an application stating that the remaining witnesses for tho prosecution were present and that the proceedings which were stopped on 18-6- 1973 may he revived The learned Magistrate rejected that application on the same day (6-7-1973) stating thus :

(3.) While supporting the order of reference, the learned Govt.Pleader submitted that the learned Magistrate was clearly in error in invoking the provisions of S.249 CrP'C and stopping all further proceedings and also releasing the respondent-accused in this case, though power is conferred qn him under thnt section to stop the proceedings at any stage without pronouncing the judgment of either acquittal or conviction and to release the accused. In other words, what he submitted was that it is not in every case that a Magistrate can have recourse to that section and that it is only when there are special circumstances and the Magistrate cannot conclude the proceedings one way or the other as contemplated by S.245 CrPC that he can act under that section. It was argued by him that in the present case the prosecution had already examined three witnesses and if the learned Magistrate was inclined not to grant time to examine the remaining witnesses for the prosecution he could have closed the case and proceeded to dispose it of in the manner provided by S.245 CrPC as. the prosecution had already placed some evidence on record, and that the learned Magistrate without even indicating that that evidence was not sufficient either to acquit or convict the respondent-accused was not justified in invoking the provisions of S.249 CrPC. It was then contended by the learned Govt. Pleader that even if what the learned Magistrate did was correct he could 4 not have declined to revive the proceedings when a motion was made by the public prosecutor and that the failure to exercise the discretion to revive the proceedings was clearly erroneous.