MADRIYALA GEORGE SOLOMON Vs. REV CH LUKE

JUDGEMENT

(1.) The question for consideration in this Revision is whether a Magistrate is competent to discharge the accused under section 253 (2), Criminal Procedure Code, without taking any evidence whatsoever. It arises in the following circumstances :- The petitioner herein filed a complaint in C.C. No. 2709/4 of 1961 before the Third City Magistrate, Hyderabad, against the Principal of the school and the Accountant of which he was a teacher of Technical Section. It was stated that, the petitioner was a policy-holder of Life Insurance Corporation of India for a sum of Rs. 2,000. A sum of Rs. 5-65 nP. was payable by him as premium. This amount had to be collected and paid over to the Life Insurance Corporation in accordance with the terms of the policy by the school where the petitioner was employed. The procedure that was being followed was that, at the time of disbursement of the salary, this amount would be deducted from the salary of the petitioner and sent to the Divisional Officer, Life Insurance Corporation. A receipt would be issued by the said Officer. The last premium was deposited by the respondents on 28th January, 1960 and the last premium receipt was issued to the complainant petitioner on 17th March, 1960. Afterwords, the petitioner did not receive any premium receipts though the amount was being deducted by the accused every month. After waiting for sometime, the petitioner sent an application to the Corporation Officer for issuing receipts who apprised that no premium has been received from the employer of the complainant and consequently the policy stood lapsed. It was alleged that both the accused, in collusion with each other, had misappropriated the amount and as such were liable for criminal breach of trust.

(2.) The learned Magistrate, after recording the statement of the complainant, registered the case and issued the summonses to both the accused-respondents. The respondents filed a petition to discharge as the amount has been paid and was held up due to inadvertance there being no mala fide on their part. Thereupon, the learned Magistrate, on hearing both the parties, recorded an order of discharge under section 253 (2), Criminal Procedure Code, on 18th July, 1961. Aggrieved by this order, the petitioner went in revision to the Chief City Magistrate and Additional Sessions Judge, Hyderabad, in Crl. R.P. No. 457 of 1961. The learned Sessions Judge held that there was nothing to show that there was any misappropriation or conversion of money to their own use by the accused. In that view he held that it was not a fit case calling for interference with the order of the learned Magistrate. Accordingly, he dismissed the revision petition. Hence this revision case. The main argument advanced by the learned counsel for the petitioner is that the Magistrate was not competent to discharge the accused under section 253 (2), Criminal Procedure Code, without recording some evidence. It is common ground that, the learned Magistrate did not examine the complainant in the presence of the accused after they entered their appearance, nor questioned the accused apart from looking into their application for discharge. Obviously, he accepted the plea, of the respondents that the amount could not be sent in time either due to other work, negligence or by oversight and that it was not a case of dishonest retention without giving an opportunity to the complainant-petitioner to prove his allegation notwithstanding an application in that respect. It is contended that section 253 (2), Criminal Procedure Code, did not authorise the Magistrate to exercise the discretion in that manner. Section 253, Criminal Procedure Code, reads as under :

(3.) On a plain reading of the section, it appears that, an order of discharge under section 253 (1) has to follow if upon taking all evidence referred to in section 252, Criminal Procedure Code, the Magistrate finds that no case against the accused has been made out which, if unrebutted, would warrant his conviction. Under sub-section (2), however, the Magistrate is authorised to discharge the accused at any previous stage if he considers the charge to be groundless for reasons to be recorded by him. The distinction seems to be that, while the order of discharge under subsection (1) is incumbent on taking all the evidence adduced, the order under subsection (2) can be made at any previous stage but for reasons to be recorded by such Magistrate. The emphasis seems to be on recording reasons for such a discharge.