1. The facts in this case are as follows. One Kasturchand Balabhai brought a complaint against the petitioner Allimahomed Joosab in the year 1936 charging him with offences under Sections 420, 406 and 403 of the Indian Penal Code. The case was fixed for hearing on January 13, 1937. The complainant was absent on that day and the Magistrate then made the order 'Complainant absent. Accused discharged.' The section of the Criminal Procedure Code under which the Magistrate acted is not mentioned in the order. But it would seem that he must have had Section 259 in mind. The only other section is Section 253. He could not have acted under the first paragraph of Section 253 because no evidence had been taken, and he can hardly have acted under the second paragraph because, if he had, he was bound to give reasons for the discharge other than the mere fact of the complainant's absence.
2. It is provided in Section 259 that when the complainant is absent, and the offence may be lawfully compounded, or is not a cognizable offence, the Magistrate may discharge the accused. Section 406 of the Indian Penal Code, which is one of the sections mentioned in the complaint, is a cognizable offence and not compoundable. Section 259 therefore of the Criminal Procedure Code does not properly apply.
3. On January 23, 1937, ten days after the dismissal of the said complaint, Kasturchand filed a fresh complaint on the same facts. This complaint was proceeded with, evidence was heard and ultimately a charge has been framed. All this time the accused, the present petitioner, was not represented by an advocate. But after the charge was framed he engaged an advocate to defend him and a point was then taken that the order of discharge was not a legal order and that it vitiated all subsequent proceedings. The argument is based on a decision of this Court in Emperor v. Morarji : (1934)36BOMLR1213 . The facts there were somewhat similar. There was an order of discharge under Section 259 on the ground of the complainant's absence, although one of the offences alleged was under Section 406 of the Indian Penal Code, and subsequently a second complaint was brought. This Court held that the order of discharge was illegal and that the proper procedure under the circumstances was to set aside all the proceedings after the verification of the first complaint. Mr. Justice Sen who delivered the judgment of the Court, after pointing out that Section 259 of the Criminal Procedure Code did not apply in the circumstances, went on to say (p. 1216):
This being our view, the order of the Magistrate purporting to be passed under section 259 was manifestly illegal, and it therefore vitiated the filing of the subsequent complaint and the proceedings thereafter.
With all deference we think that the learned Judge went rather too far in saying or suggesting that the making of an illegal order necessarily vitiated the proceedings. It has been held in a number of cases (I need only refer to Emperor v. Khushal : (1926)28BOMLR1026 that there is no universal rule that disobedience even of a mandatory provision in a statute has the consequence of nullification of the proceedings, irrespective of any question of prejudice to the accused or other party. I may also point out in connection with the case of Emperor v. Morarji that it was held there that the complainant had deliberately remained absent on the first occasion because he desired to bring a fresh complaint and thereby get an opportunity of having a police investigation which had been refused in the first case. There were therefore circumstances there making it proper that the second complaint should be quashed, which do not exist in the case with which we are concerned.
4. It cannot be suggested that the accused here has been in any way prejudiced and unless it were necessary to do so it would obviously be undesirable to interfere in revision when the effect of the interference would merely be that the evidence which has been recorded will have to be recorded over again, with consequent waste of time and money. It has no doubt been pointed out that the advocate was not present when the witnesses were examined. But there was nothing to prevent the accused from engaging an advocate before. Also it does not appear that there is anything to prevent the witnesses being recalled now that the charge has been framed for cross-examination. We think, under the circumstances, that we are not called upon to interfere in revision and discharge the rule.