1. This is an application Under Section 439, Criminal P.C. seeking to quash a complaint filed by one Pannalal Agarwalla Under Sections 420, 406, 120B Penal Code against some 10 persons, some of whom are women. The complaint filed by Pannalal is in these terms:
Accused are related to each other. On the 1st week, of March, there was a talk for marriage of the daughter of accused 1 with Govindaram, brother of complainant. According to custom, with the brother of complainant, I went to Nazira & the accused expressed to give her in marriage & the girl also agreed. On 16-3-50, accused 1, 3 & 5 came to the house of the complainant & finalised the marriage proposal & fixed 27-4-50 for marriage, & on that day Rs. 9000/- in cash & ornaments of 60 tolas of gold & clothes & other things were arranged to be given & on that very day Rs. 7000/- was paid in cash. On 25-4-1950 the complainant, with some others, went to the house of the girl according to custom & delivered ornaments of 62 1/2 tolas of gold (price Rs. 7575/-) to accused 1, 2, 3, 5, 6, 7, 8 & 9 & also gave clothes worth Rs. 900/-, silver ornaments worth Rs. 50/-, one watch worth Rs. 105/-, & the accused accepted those things &, according to custom, honoured the complainant. Besides that, on 19-4-50. articles worth Rs. 900/1/- & cash Rs. 295/- were also given. On 27-4-50, the complainant, with a marriage party of 50 other persons, went to the house of the accused for marriage, but the accused fraudulently & collusively already arranged to give marriage of the daughter of accused 1 with accused 10, & at about 2 o'clock:, the accused stated that there was no arrangement for marriage with the brother of the complainant & denied receipt of cash & ornaments from the complainant. At last the accused brought a Magistrate & a Police & drove away the complainant & his party & misappropriated the ornaments & cash & clothing. The accused entered into a conspiracy to do this from before, & the complainant was highly insulted & put to great loss.
So, it is prayed that warrant of arrest may be issued against the accused & the articles be recovered from the house of the accused by a search warrant &, on recovery, the articles may be given in custody of the complainant.
2. In the matter of quashing a complaint, a High Court does not ordinarily interfere unless it is satisfied on the face of the complaint that no offence is disclosed. Manifestly this is not a complaint which falls within that category.
3. Mr. J.C. Medhi for the accused petitioners has, however, argued that the complaint in this case was disposed of by an order of discharge passed by the Magistrate on 10-6-50, & that the learned Magistrate, therefore, had no jurisdiction to rehear the original complaint on a petition made by the complainant, having regard to the provisions of Section 436, Criminal P.C.
4. While it is true that the learned Magistrate has stated in his order, dated 10-6-50, that the accused are discharged Under Section 253, Criminal P.C. nevertheless it is manifest from the order itself that the order cannot be regarded as having been passed Under Section 253, Cr. P.C. The order reads:
The complainant is absent & takes no steps. The accused are discharged Under Section 253, Cr. P.C.
Under Sub-section (1) of Section 253, Cr. P.C. a Magistrate is competent to discharge an accused person if after taking all the evidence referred to in Section 252, Cr. P.C. & after making such examination (if any) of the accused as the Magistrate thinks necessary, he finds that no case against the accused has been made out which, if unrebutted, would warrant his conviction. Manifestly the learned Magistrate did not act Under Section 253 (1), Cr. P.C. Equally manifestly the learned Magistrate did not act under Sub-section (2) of Section 253, Cr. P.C. for, nowhere is it stated in the order that the charge is groundless.
5. The question, therefore, for our consideration is — what is the effect of the order which purports to have been passed under Section 253, Cr. P.C. but, in fact, is not. We think the order is one of dismissing the complaint under Section 204(3), Criminal P.C. for, it appears that the complainant took no steps to have one of the male absent accused, called Biswanath Agarwalla, & the female accused served. On 30-5-50, the learned Magistrate had passed an order adjourning the case to 10-6-50 to decide the question whether the female accused should be permitted to appear through an advocate. The complainant remained absent on that day. It may well be that the question of paying process fees for summoning the female accused arose, & as the complainant was absent, the learned Magistrate, instead of dismissing the complaint under Section 204, Cr. P.C. mistakenly passed an order characterising it as an order under Section 253, Cr. P.C.
6. Mr. Ghose for the complainant has referred us to two decisions of the Calcutta High Court reported in 'Dwarka Nath v. Beni Madhab' 28 Cal. 652 and Mir Ahwad Hossein v. Md. Askari 29 Cal. 726, in the first of which the majority of the Full Bench observed:
that a Presidency Magistrate is competent to re-hear a warrant case triable under Chap. XXI, Criminal P.C. in which he has discharged the accused person.
Whether the decision of the majority of the Full Bench of the Calcutta High Court would now prevail in view of the proviso to Section 436, Cr. P.C. added subsequently, it is not necessary for us to express any opinion upon. The observations of Ghose, J., however, in 28 Cal. 652, as interpreted in the head-note, tend to support the view that where a discharge order is not made in accordance with the provisions of Sub-sections (1) & (2) of Section 253, Cr. P.C. a Magistrate is competent to re-hear a complaint. The head-note is in these terms:
Where a Presidency Magistrate, by reason of the absence of the complainant, & without pronouncing any opinion as to the guilt or innocence of the accused, strikes off the case, his order is not a judgment within the meaning of the Code, & may be altered or reviewed by him upon application being made, but where the Magistrate, after taking evidence, however incomplete that evidence may be, exercises his judgment, & makes an order of discharge, he is not competent to review or alter it, & make further inquiry, without the order of the Superior Court.
It is an admitted position in this case that no evidence whatever was taken by the Magistrate; the Magistrate disposed of the complaint in the absence of the complainant. On these facts, we do not think the Magistrate was incompetent to rehear the complaint, &, as the complaint, on the face of it, does not disclose absence of any offence, the question of quashing it does not arise.
7. The last point raised was that the women accused at any rate might be exempted from personal appearance under the provisions of Section 205, Cr. P. C. The difficulty in acceding to this prayer is that the Magistrate has issued a warrant, & not a summons. In terms, therefore, Section 205, Cr. P.C. does not apply. The proper course for the women petitioners is to apply to the learned Magistrate to substitute a summons for a warrant &, if the Magistrate accedes to the prayer, then to pray for exemption, from personal appearance. We express no opinion at this stage as to whether the Magistrate should or should not exempt them from personal appearance.
8. The result is that the application is dismissed. The Rule is discharged.
Ram Labhaya, J.
9. I agree