SATYANANDA NAIK Vs. BHASKAR NAIK

JUDGEMENT

(1.) The short question involved in this revision petition is whether in the facts and circumstances of the case, it was open to the court below to discharge the accused person under Section 249, Criminal Procedure Code.

(2.) On a petition of complaint filed by the petitioner, ICC Case No. 123 of 1981 was initiated on 30th of March, 198l by the Chief Judicial Magistrate, Cuttack. On examination of the complainant the learned Magistrate took cognizance of offence under Sections 448/ 380 and 427, Indian Penal Code against the accused-opposite parties on the same day. On 10.8-1981 the case was transferred to the court of Shri A. K. Sonapati. Magistrate, First Class for disposal. On 29-9- 1981 when the case was posted for hearing there was no appearance for the complainant. An application for adjournment on the ground of illness of the complainant was filed. Since there was none to move the application, the learned court rejected the same and directed the complainant to get ready by 1 P.M. At 2 P.M. when the case was taken up none appeared for the complainant. The learned Magistrate directed the case to be called at 4 P.M. When there was still no appearance for the complainant, he passed the order dismissing the complaint for default and discharged the accused under Section 249, Criminal Procedure Code, Section 249, Criminal Procedure Code reads as follows: When the proceedings have been instituted upon complaint and on any day fixed for the hearing of the case, the complainant is absent; and the offence may be lawfully compounded or is not a cognizable offence, the Magistrate may, in his discretion notwithstanding anything herein before contained at any time before the charge has been framed, discharge the accused.' The sole ground on which the impugned order is challenged is that in view of the charges framed in the case under Section 249 of the Code bad no application to the case and hence it was not open to the learned Magistrate to discharge the accused persons in exercise of his powers under the said section. A bare reading of the section shows that the power to discharge under this section can be exercised in all non-cognizable offences, whether compoundable or not, and in all compoundable offence whether cognizable or not. In other words, the offences of which the accused persons are charged must be either compoundable or non-cognizable in order to attract the provisions of the section. Where several offences are charged against the accused, it is necessary that an of them should be compoundable or non-cognizable in order that the section may apply.

(3.) Applying the aforesaid principles to the present case, cognizance was taken against the accused persons under Sections 448/380 and. 427, Indian Penal Code. Of these, Sections 448 and 427 are compoundable though not non-cognizable. Section 380, Indian Penal Code is neither noncognizable nor compoundable. As such, requirements under Section 249, Criminal Procedure Code are not satisfied so far as Section 380, Indian Penal Code is concerned. Therefore, it was not open to the learned Magistrate to discharge the accused persons under Section 249, Criminal Procedure Code.