VEDAIYA GOUNDER Vs. THIVIK GOUNDER

JUDGEMENT

(1.) This revision has been filed by the complainant Vedaiya Go under against the order of discharge passed on 13/8/1993 by the learned Judicial Magistrate, Thiruthuraipoondi.

(2.) The petitioner filed a private complaint before the Magistrate. Thiruthuraipoondi against the respondents for the offence under sections 452, 448, 380 and 427, IPC alleging that on 18/7/1992 the respondents 1 and 2 trespassed into the house of the complainant and took away the articles and they committed theft of mango and coconut seeds from the Thoppu and also caused damage to the Casurina Thoppu. This complaint was taken on file on 23/10/1992 in C.C. No. 2708/92. The case was called on 21/11/1992, 18/12/1992 and 22/1/1993, however, the accused/respondents did not appear. Finally they appeared on 26/2/1993 and the copy of the complaint was furnished to them on the same date and subsequently the case was called on 26/3/1993, 16/4/1993, 7/5/1993, 21/5/1993 and 25/6/1993 at Vedaranyam Camp Court. On all these dates the complainant/petitioner was present. Finally on 5/7/1993 the case was adjourned to 23/8/1993. On that date both the petitioner and his counsel were present. When they went to the Court on that date he came to know that the matter was called on 13/8/1993 and since the complainant was not present, the Magistrate discharged the accused under section 249, Cr. P.C. Aggrieved by the said order, the present revision has been filed.

(3.) This revision has to be allowed on a simple ground namely section 249, Cr. P.C. cannot be made applicable to the present case for the following reason. Under section 249, Cr. P.C., the Magistrate by his discretion, at any time before the charge has been framed, may discharge the accused when the complainant is absent. But, it could be done only when the offence is lawfully compounded and is not cognizable offence. But, these offences, (452, 448, 380 and 472, IPC) as per the Schedule to Cr. P.C., are cognizable offences and they are not compoundable. As such the Magistrate is wrong in discharging the accused/respondents under section 249, Cr. P.C. So, in view of the above illegality, I feel, that the order passed by the learned Magistrate is deserved to be set aside and accordingly, it is set aside. Therefore, the matter is remanded back to the Magistrate for trial and the Magistrate is directed to issue summons afresh to the accused/respondents and dispose of the matter as early as possible. Revision is allowed. Revision allowed.