STATE Vs. MOHAMMAD ISMAIL

JUDGEMENT

(1.) This revision case is taken up suo motu in view of certain irregularities noticed at the time of the inspection of the Judicial Magistrate's Court, First Class, Neyyattinkara.

(2.) C. C. No. 279 of 1975 was initiated by the Sub Inspector of Police, Neyyattinkara, against one Mytheen Pillai Mohammed Ismail for offences punishable under S.457 and 380 of the Indian Penal Code. Several attempts were made to get at the accused. While so, the Assistant Public Prosecutor filed a report stating that the case was pending for many months without any progress on account of the non availability of the accused, that the efforts to get at the accused having failed, in order to avoid unnecessary pendency in the Court permission might be given under S.321 of the Code of Criminal Procedure for withdrawing the prosecution for the time being, without prejudice to the right of the prosecution to proceed against the accused as and when he would be made available to stand the trial. The Court allowed the withdrawal of the case without prejudice to the right of prosecution to proceed against the accused as and when he would be made available to stand the trial. The court also discharged the accused under S.321 of the Code of Criminal Procedure. The propriety of this order was doubted by the Chief Judicial Magistrate and a report was sent to this Court for taking appropriate action in the matter.

(3.) There is no provision in the Code of Criminal Procedure for permitting withdrawal of a case solely on the ground that the whereabouts of the accused are not known. In respect of summons cases a power is given to the Court to stop the proceedings under S.258 of the Code of Criminal Procedure in cases filed otherwise than upon a complaint. In such cases it the stoppage of proceedings is made after the evidence of principal witnesses has been recorded the accused would be acquitted and in any other case the accused would be released, and such release would have the effect of discharge. Even such a provision is absent in respect of warrant cases. No doubt, there is the general power under S.321 of the Code for withdrawing the prosecution with the consent of the Court and in such cases the withdrawal if it is made before the charge is framed the accused would stand discharged and if after the charge is framed the accused would stand acquitted. There is conflict of opinion as to whether after an order of discharge the State has power to direct prosecution of the accused on the same facts so long as the discharge is not set aside by a competent judicial authority. (See Khanimullah v. Emperor AIR 1947 Peshawar 19, and The King v. K. N. Chachan 50 Crl. L. J. 992) S.321 does not contemplate cases of the present kind where the effect of the withdrawal is only provisional and it is open to the State to start fresh prosecution when the accused makes himself available. It is not as if the Code of Criminal Procedure does not provide for action to be taken when the accused could not be found and where he is absconding S.64 of the Code of Criminal Procedure states that where an accused person cannot be found in spite of exercise of due diligence, summons may be served by leaving one of the duplicates for him with some adult male member of his family residing with him and the person with whom the summons is so left shall, if so required by the serving officer, sign a receipt therefor on the back of the other duplicate. It is a case where the service cannot be effected in the normal course or under S.64 the serving officer should affix one of the duplicates of the summons to some conspicuous part of the house or homestead in which the person summoned ordinarily resides, and thereupon, the Court, after making such inquiries as it thinks fit, may declare that the summons has been duly served or order fresh notice in such manner as it considers proper. Reference may also be made to S.299, which corresponds to S.512 of the Code of 1898, which provides that if it is proved that an accused person has absconded, and that there is no immediate prospect of arresting him, the Court competent to try or commit for trial such person for the offence complained of may, in his absence, examine the witnesses (if any) produced on behalf of the prosecution, and record their depositions. Any such deposition may, on the arrest of such person, be given in evidence against him on the inquiry into, or trial for, the offence with which he is charged, if the deponent is dead or incapable of giving evidence or cannot be found or his presence cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable