LAWS(HPH)-1963-1-3

SHANKAR DASS Vs. MAHU RAM

Decided On January 10, 1963
SHANKAR DASS Appellant
V/S
MAHU RAM Respondents

JUDGEMENT

(1.) This reference has been made by the learned Sessions Judge Mahasu recommending that the order made by the learned Magistrate Second Class Kotkhai discharging the respondents of an offence under Section 448 read with Section 109 of I. P. C. be vacated.

(2.) A complaint had been filed against respondents by Shankar Dass for an offence under Section 448 read with Section 109 of I. P. C. in the Court of Magistrate Second Class Kotkhai. On 5-4-1962 the complainant was absent and on that ground the learned Magistrate discharged the respondents in exercise of the powers conferred by Section 259 of Cr. P. C. An application in revision against that order was filed before the learned Sessions Judge on the grounds that the order of discharge was illegal and the complainant was present outside the Court room throughout the day but the case was not called on for hearing. While the Sessions Judge did not accept the complainant's version as to his being present he was of the opinion that as the offence with which the respondents were chargeed was a cognizable one the provisions of Section 259 of Cr. P. C. were not attracted and accordingly he submitted the reference under consideration. Section 259 of Cr. P. C. reads as below :

(3.) It appears from the aforesaid clause that the Bill as introduced in the Assembly provided that the Magistrate should have the power to discharge the accused in any case instituted upon complaint. Prior to the introduction of the Bill the power was exercisable in cases dealing with offences that could be lawfully compounded. The intention underlying the Bill was to widen the scope of Section 259. The Select Committee, however, thought that it would not be desirable to widen the scope of the section to the extent indicated by the Amendment Bill and that it would be sufficient to extend the application of the section to pases of non-cognizable offences. It would thus appear that the Select Committee did not intend to curtail the scope of the section as it stood prior to 1923 and what it proposed was to extend ita scope by making the section applicable also to all non-cognizable offences and it, therefore, proposed to add the words "or is not a cognizable offence" after the words "may be lawfully compounded".