UTTAMRAO SHRIPAT BHUTEKAR Vs. ASRU HANWANTA BHUTEKAR

JUDGEMENT

(1.) THE non-applicants were prosecuted under Section 429, Penal Code, for mischief by killing a buffalo. The complaint was filed on 25-7-1946. There were eight hearings and on the ninth the complainant was absent. Accordingly, the trying Magistrate, purporting to act under Section 253(2), Criminal P.C., discharged the accused. He did not say that he considered the charge to be groundless, but merely said that: The complainant being absent there is no evidence against the accused persons.

(2.) NOW of course, if there is no evidence against an accused person, that is a good ground for discharging him. But before it can be said that there is no evidence, it is incumbent on the Magistrate to call and examine such witnesses as are said to know the facts. When the complainant was examined on 25-7-1946 he stated on affirmation that he knew" nothing personally but had been told the facts by two persons whom he named. The Magistrate was bound in these circumstances to call these two witnesses and examine them.

(3.) THEN comes Section 253 which provides in Sub-section (1) for the discharge of the accused. if upon taking all the evidence referred to in Section 252 he finds no case made out etc. See also Thakurdas v. Narayan A.I.R. 1936 Nag. 192.