WAHED BUX WAESHI Vs. FAKHARUDDIN PIRACHA

JUDGEMENT

(1.) THIS rule was issued upon the District Magistrate of Dacca to show cause why an order of discharge passed under Section 253(2), Criminal P.C., should not be set aside. The material facts briefly are as follows : The complainant one Wahed Baksh Waeshi filed a petition of complaint on 14 June 1938, before a Magistrate of Dacca alleging that the accused Fakharuddin Piracha had committed an offence punishable under Section 420, Indian Penal Code. A warrant with bail under Section 420, Indian Penal Code was issued on that same date against the accused. The accused surrendered in Court on 16 October 1939 after proclamations and attachments had been issued. Thereafter on a number of dates witnesses were examined for the prosecution and the case was adjourned to 4 December 1939 on which date the Magistrate proposed to hear arguments on the question whether or not a charge should be framed. On 4 December 1939, a joint application was filed by the complainant and the accused praying for time to compromise. Time was allowed and extended on various occasions up to 30 March 1940. On that date the accused did not appear and a warrant for his arrest was again issued. Since that date, the accused has failed to appear and no trace of his whereabouts has been found. The case was put up before the Magistrate on a number of dates and ultimately on 7 February 1941, the learned Magistrate passed an order discharging the accused under Section 253(2), Criminal P.C., on the ground that it was useless to wait and drag on the case indefinitely any more. Section 253(2) of the Code empowers a Magistrate to discharge an accused person only if for reasons to be recorded by such Magistrate he considers the charge to be groundless. Far from recording any reasons to show that the Magistrate had considered the charge to be groundless it is apparent that the Magistrate had evidence before him and had not as yet applied his mind to the question whether the charge had been substantiated or not. In the circumstances the Magistrate bad no jurisdiction to pass an order discharging the accused under Section 253(2), Criminal P.C. The rule is made absolute, the order of discharge is set aside and the case remanded to the learned Magistrate for disposal according to law.