SHIVPRASAD DUBEY Vs. HARINARAYAN

JUDGEMENT

(1.) THIS revision is at the instance of the accused seeking interference with the order made by the Sessions Court setting aside the order of dismissal of a complaint under the provisions of section 203 Cr. P.C. and directing further inquiry.

(2.) THE short point on which the order impugned is sought to be assailed is that the Sessions Court could not pass such order which directs further inquiry without notice and an opportunity of hearing being given to the present applicant. Shri N.P. Mittal, learned counsel appearing for the applicant, placed reliance on the contents of the proviso added to section 398 of the Code of Criminal Procedure, 1973, as reproduced below : -

(3.) THUS , the question which arises for determination is whether in cases where the Magistrate dismisses the complaint under section 203 of the Code on being satisfied that there was no sufficient ground to proceed and does not direct issuance of process in accordance with the provisions of S. 204, the person against whom the complaint was lodged can be said to have been discharged, If the dismissal of she complaint under S. 203 amounts to discharge, then naturally the Sessions Court will be bound to give an opportunity of being heard to the accused before making any direction for further inquiry, But if it is not a case of discharge, then no notice will be required to be issued to the accused by the Sessions Court while directing further inquiry. In the opinion of this Court, the accused person can be said to be discharged within the meaning of the proviso added to section 398 of the new Code corresponding to S. 436 of the old Code when the case against him terminates in accordance with the provisions of S. 245, 249 or in accordance with any other provisions of the new Code providing for the discharge of the accused. Section 245 (1) provides when an accused shall be discharged. It lays down that if, upon taking all the evidence referred to in section 244, i.e., after the appearance of the accused before the court, no case is made out against the accused which, if un -rebutted, would warrant his conviction, the Magistrate shall discharge him. Sub section (2) of S. 245 further provides that the Magistrate may also at any previous stage of the case, for reasons to be recorded discharge the accused on finding the charge to be groundless. Similarly, section 249 provides for the discharge due to the absence of the complainant in certain cases involving the offences which may be lawfully compoundable or may not be cognizable. Thus, the expression 'any person who has been discharged' as used in the proviso to S. 398 refers to only such person who has been discharged in accordance with the above referred provisions corresponding to S. 209, S. 253 or S. 259 of the old Code, but not in the case of a person against whom no process at all has been issued and the complaint happened to be dismissed under section 203.