CHINNAKANNU Vs. STATE OF MADRAS AND ORS.

JUDGEMENT

(1.) The petitioner is one of the accused in C.C. No. 149 of 1962, a private complaint filed against him and the third respondent herein for offences punishable under Ss. 408 and 380, Indian Penal Code. The Sub -Magistrate, Kiranur who took the complaint on file examined as many as 9 witnesses from out of the two lists of witnesses filed by the complainant, and finding no prima facie case made against either of the accused, discharged them under Sec. 253(1) Criminal Procedure Code. The complainant took the matter in appeal, and the District Magistrate set aside the order of discharge on the ground that the witnesses cited had not been examined and directed the complaint to be restored to file for disposal according to law. Learned Counsel for the petitioner urges that all the witnesses wanted to be examined by the complainant were examined by the trial Magistrate, that the witnesses mentioned by him in the third list were not summoned and the list was rejected by the trial Magistrate because the complainant did not want to examine any of them and that, therefore, there was no reason for the District Magistrate to interfere with the order of discharge passed by trial Magistrate. The reason for setting side the order of discharge is stated in Para 4 of the judgment of the District Magistrate. That shows that the complainant had mentioned 12 witnesses in the complaint, and he has cited 10 witnesses in the list filed by him on 2nd February, 1962. He filed another list of witnesses on 8th February, 1962 which the trial Magistrate dismissed on 2nd May, 1962, after the case was closed. It appears to have been contended before the learned District Magistrate that, even if this latter list was ignored, there were witnesses in the complaint and in the additional list and they had not been examined by the learned trial Magistrate. Witnesses were summoned in this case as required by the complainant. It does not appear from the records that any application for summoning the other witnesses cited in the complaint or in the list had been made by the complainant. In the absence of such application it was not open to the complainant to have contended that he wanted the witnesses to be examined and that the Magistrate had failed to do so. There is no case that the witnesses summoned had not been examined by the trial Magistrate. In the circumstances, it seems to me that there is no substance in the observation of the District Magistrate that all the witnesses named by the complainant in the complaint and in the first list had not been examined.

(2.) My attention however was drawn by the learned Public Prosecutor to Narayana Singh v/s. Nalluri Seetharatnamma : 1946 M.W.N. (Crl.) 66. In that case Kuppuswami Ayyar, J., held that a Magistrate has no power to pass an order of discharge under Sec. 251(1) Criminal Procedure Code, until he has examined an the witnesses cited, and the learned Judge relied for the view taken by him on the decision on the Queen v/s. Parasurama Naicker, (1881) I.L.R. 4 Mad. 329. It seems to me, that these decisions are not of avail in this case, unless it is shown that of the witnesses cited, having examined nine, the complainant wanted to examine any other and had taken steps to examine them. The circumstances of this case do not lend support to that view, and therefore, it is my view that the learned District Magistrate was not justified in interfering with the order of discharge passed by the learned Sub -Magistrate in this case and this view gains support from the observations in State of Hyderabad v/s. Mohd. Shakur, A.I.R. 1954 Hyd. 95. The Criminal Revision case is allowed. The order of the District Magistrate is set aside and that of the trial Magistrate is restored.