AGADHU DAS Vs. BABAN PARIDA

JUDGEMENT

(1.) This revision has been referred to the Division Bench by order of Hon'ble Mr. J.K. Mohanty, J. (as he then was) on the question whether in a warrant case instituted upon a complaint, the accused persons can be discharged under 245 (2), Criminal P.C. if after repeated opportunity the complainant fails to produce any material evidence.

(2.) The petitioner filed a complaint before the Sub-Divisional Judicial Magistrate, Bhubaneswar against the opposite parties on which 1.00 No. 1 of 1977 was registered. The learned Sub-divisional Judicial Magistrate, Bhubaneswar took cognizance in the case on 19-1-1977 under Ss. 379 and 323, Penal Code and after examining the petitioner directed summons to be issued to the opposite parties for appearance. Thereafter several, dates of hearing were fixed with direction to the petitioner to bring his witnesses but however since after various adjournments the petitioner did not produce any witness, the learned Magistrate recorded an order on 29-11-1979 as follows : - "Even after repeated opportunities complainant had failed to produce any material evidence to frame charge. The accused persons are discharged under S.245(1), Criminal Procedure Code." As has been stated in the order of the learned single Judge, the mention of S.245(1), Cr. P.C. is obviously a mistake for S.245 (2), Criminal Procedure Code.

(3.) The order passed by the learned Magistrate is assailed before us on the ground that the court had no jurisdiction to discharge the opposite parties under S.245 (2), Cr. P.C. and that the court should have adopted the coercive process to secure attendance of the witnesses and having failed to do so, the order should be set aside the records sent back to the lower court for the opposite parties to stand their trial. It is urged that such an order as has been passed by the learned Magistrate could only be passed under S.249, Cr. P.C. but however the case at hand being neither compoundable nor non-cognizable, there was no discretion of the Magistrate to have discharged the accused.