1. This revision petition is before us having been referred to a Bench by our learned brother, Jagan mohan Reddy, J.
2. The relevant facts to be noticed are : In C. C. No. 353/59 on the file of the Principal Judicial Second Class Magistrate, Tanuku, seven accused were charge-sheeted for offences punishable under Sections 147 and 323, I. P. C. On 12-3-1959 the learned Magistrate discharged accused 4 to 7 under: Section 251-A (2), Cr. P. C. as, in his opinion, the charge against them is groundless; and the trial proceeded against the other accused viz., accused 1 to 3. The complainant filed a revision application tinder Section 435 of the Code of Criminal Procedure against this order of discharge and it was heard by the Additional Sessions Judge, Eluru.
It was urged before the learned Additional Sessions Judge that the Judicial Second Class Magistrate, who discharged the accused, did not assign in support of the order any reasons and that therefore the order of discharge was liable to be set aside. The learned Additional Sessions Judge, on an examination of the statements recorded separately by the Sub Inspector and the Circle Inspector under Section 162, Cr. P. C. found that accused 4 to 7 were implicated only in the statements given before the Circle Inspector while nothing incriminating against these accused was stated before the Sub Inspector and the statements of some of the witnesses were conflicting, and therefore felt that there was justification for the order of discharge.
The learned Additional Sessions Judge was of the opinion that no reasons need be given for discharging the accused under Section 251-A (2), Cr. P. C. He further sought to rely upon the decision of Govind Menon, J. reported in Re Jayaraman, ILR (1949) Mad 137 : (1948) 1 Mad LJ 341 ; (AIR 1949 Mad 66), for holding that the proper time when the propriety of the order of discharge could be agitated in revision is only after the court of enquiry or trial has finally disposed of the matter and that therefore the revision petition was not maintainable. As against this dismissal of the revision petition, the complainant preferred to this court a further revision application which is now before us.
3. The questions referred to the Bench are the following :
1. Whether a revision lies against an order of discharge made by the Magistrate in respect of some accused pending final disposal of the case; and
2. Whether it is not necessary for the Magistrate while discharging the accused to give reasons therefor under Section 251-A (2), Cr. P. C.
4. It is convenient to deal first with the second question. In support of the contention that it is not necessary to give reasons while discharging some of the accused when the case is pending against others, the wordings of Sections 251-A (2) and 253, Cr. P. C. are sought to be contrasted. To enable a comparative study of them, they are set down hereunder :
251-A(2).'If, upon consideration of all the documents referred to in s. 173 and making such examination, if any, of theaccused as the Magistrate thinks necessary and after giving the prosecution andthe accused an opportunity of being heard, the Magistrate considers the charge against theaccused to be groundless, he.shall dischargehim.
253(1),'If upon taking all the evidence referred to in S. 252, and making suchexamination (If any) of the accused as the Magistrate thinks necessary, he findsthat no case against the accused has been made out which, it unrebutted, wouldwar. rant his conviction, theMagistrate shall discharge him.
(2)Nothing in this sectionshall be deemedto prevent a Magistrate fromdischargingthe accused at any previous stage of case if, FOR REASONS TO BE RECORDED BY SUCH MAGISTRATE heconsiders the charge to be groundless.
The absence of the words 'for reasons to be recorded by such magistrate.' (found and underscored by us in sub-section (2) of Section 253) in the language of sub-section (2) of Section 251-A is particularly stressed in support of this contention. It is urged that no reasons need be given by a Court when some accused are discharged in a case instituted on a police-report.
But an examination of these provisions, having regard to their setting and the purpose each one of them seeks to serve as individual distinct conceptions of the functions of a Court, makes it possible to postulate that though the absence of those words or anything parallel to sub-section (2) of Section 253 is deliberate, the assigning of the reasons by a court that the charge is groundless is not meant to be dispensed with altogether.
5. Section 251-A, Cr. P. C governs the trial of warrant eases instituted on a police report. It is inserted by Act XXVI of 1955. The scheme adumbrated for speedy conclusion of committal proceedings dispenses with the hearing of the complainant (if any) and the taking of all such evidence as may be produced in support of the prosecution and the summoning of witnesses mentioned by the complainant or of persons, otherwise ascertained as likely to be acquainted with the facts, as will be the case with the trial of a warrant case instituted otherwise than on a police report.
The Magistrate has not also to find -before discharging an accused that no case against the accused has been made out which, if unrebutted, would warrant his conviction. On the other hand, what is required to be done by adopting the altered procedure prescribed in sub-section (2) of Section 251-A, i.e., in a case instituted on a police-report, is a consideration by the Magistrate of all the documents referred to in Section 173, Cri. P. C. The Magistrate is given the discretion of making an examination of the accused only when he thinks it necessary; he has merely to give the prosecution and the accused an opportunity of being heard and thereafter if he considers the charge against the accused to be groundless, he shall discharge the accused.
It is clear that while proceeding under S. 253, Cr. P. G. certain pre-requisites are prescribed in order to find out that no case against the accused has been made out which, if unrebutted, would warrant his conviction, and that simpler procedure has been provided to enable the Magistrate in a case instituted on a police-report to find out whether the charge against the accused is groundless. Nevertheless in either case, it cannot be said that it is intended by the Code that the discharge of an accused could be for no reason whatsoever.
Sub-section (1) of Section 253 and sub-section (2) of Section 251-A, Cr. P. C. provide, in our view, the power for a court to discharge an accused, only if the procedure laid down in each category of cases as specified by the respective section, is observed : In a case instituted otherwise than on a police-report the finding that no case against the accused has been made out which, if unrebutted, would warrant his conviction, is necessary to be reasoned out by a court in order to discharge on. accused; it is as well that why the court considers the charge against the accused to be groundless, should also be specified while an order is passed by a Magistrate in a case instituted on a police-report.
Having regard therefore to the language in which these sections are couched it is incumbent upon the Magistrate not to act arbitrarily but only make the orders of discharge dependent upon intelligible reasons. The fact that in sub-s. (1) of S. 253 and sub-section (2) of Section 251-A, there was no express direction to give reasons does not dispense with or discard the need to give reasons. There is therefore no room for the contention that reasons are not required to be given in either case while orders discharging the accused are passed.
6. We will now advert to the significance of the presence of sub-section (2) of See. 253 and the absence of a similar provision in Section 251-A, Cr, P. C. It is obvious that in a case instituted otherwise than on a police-report, such evidence as may be produced in support of the prosecution or other evidence of persons likely to be acquainted with the facts of the case has to be taken by the Magistrate before the accused is discharged under sub-s. (1) of S. 253.
There is also the examination of the complainant to precede the taking of the evidence and the examination of the accused by the Magistrate is also to follow the taking of the evidence. As these stages are contemplated in the procedure to be followed in cases of private complaint, sub-section (2) of Section 253 should have been found necessary to be enacted so that any stage in that case before an order of discharge is passed under sub-section (1) of Section 253 the Magistrate could, if he considers the charge to be 'groundless', discharge the accused stating the reasons for doing so.
Inasmuch as the power to discharge before the recording of the whole evidence for the prosecution is made to be dependent upon the opinion of the Magistrate that the charge is groundless, there is specific direction in sub-section (2) of Section 253 that the reasons therefor shall be recorded. This is only a pointer to the caution administered by the legislature by enacting this provision that while it is necessary while acting under, sub-section (1) of Section 253 for the Magistrate to come to the conclusion that no case has been made out as stated therein, the discharge of an accused in a previous stage of the case should be for stated reasons making out how the charge against the discharged accused is groundless.
Thus reading the purpose for giving the directions in the section itself while acting under sub-section (2) of Section 253, it is not reasonable or justifiable to suppose that reasons for discharging an accused under sub-section (1) of Section 253 are thought unnecessary or otiose; so also in our view, is the case with reference to courts which discharge the accused under the powers conferred by sub-section (2) of Section 251-A,
7. It is also pertinent to observe that a provision parallel to sub-section (2) of Section 253 is omitted to be inserted in Section 251-A for the obvious reason that in the simplified procedure to be adopted under Section 251-A for a case instituted on a police-report, no stages such as the taking of evidence or the examination of the complainant or the summoning of persons likely to be acquainted with the facts of the case have been contemplated; but only a consideration of all the documents referred to in Section 173 Cri. P. C. and making such examination, if any, of the accused as the Magistrate thinks necessary and giving the prosecution and the accused! an opportunity of being heard, presumably to be done in the course of the same hearing.
Therefore, not only do we find the absence of a parallel to sub-section (2) of Section 253, but also the justification for not stating in sub-section (2) of S. 251-A that the reasons are to be recorded. It is thus clear that even without these words, as already observed by us, reasons are necessary to be given for discharging the accused; and the giving of reasons is not to be avoided ordinarily in any case when the discharge is in any previous stage of the case as contemplated under sub-section (2) of Section 253 Cri. P. C.
8. Mr. Gangadhara Rao for the petitioner drew our attention to the employment of the words 'record his reasons and discharge the accused' contained in sub-section (1) of Section 209 and to the similarity of the wording of sub-section (2) of Section 209 to those of sub-section (2) of Section 253. No doubt, Secs. 209 and 253 may be considered as parallel provisions pertaining to the discharge of an accused by a Magistrate enquiring into the case triable by a court of Session or a High Court and a Magistrate trying a warrant case, respectively.
But once the purport of sub-section (1) of Section 209 is noted, which is, that not only that the accused in that case is discharged, not because the charge is groundless or that no prima facie case against tile accused has been made out, but the Magistrate considers that the accused has to be tried before himself or some Other Magistrate for offences for which no committal to Sessions Court is necessary, the specific directions that the Magistrate shall record reasons why the Magistrate considers so at that stage becomes intelligible.
No doubt, sub-section (6) of Section 207-A winch is in respect of an enquiry into a case instituted on a police report, and triable by a Sessions Court contains the direction that the Magistrate shall record his reasons for discharging the accused. But again the discharge contemplated in that sub-section is only when the view of the Magistrate is similarly that the discharged accused should be tried before himself or some other Magistrate. So, what we have said in regard to the discharge under Section 209 will equally apply to a discharge of the accused under this sub-section.
It is, however, useful to have to refer to subsection (2) of Section 213 which is in respect of discharging the accused alter cancelling the charge if there are no sufficient grounds in the view of the Magistrate to commit the accused. It is not stated therein that the reasons are to be recorded; nevertheless, we consider the fact that the Magistrate can act under this provision, if there are no sufficient grounds for committing the accused, implies that the Magistrate shall give the reasons therefor as no Magistrate can annul a charge arbitrarily.
Thus it will be seen there is no incongruity in the phraseology with which the sections referred to above have been couched, but that appropriate expressions suitable for the purpose for which these provisions are made, have been employed; and in any case the giving of reasons for any action taken by a Magistrate under these provisions cannot be said to have been done away with. Nor could it be said that it would accord with the accredited principles of justice, and fair-play that when the Magistrate is required to find whether the situation is such as that described in the provisions of the Cri. P. C. he could ever do so without assigning reasons therefor. On this analogy also, we are unable to find support for the contention that no reasons should be given by a Magistrate discharging an accused while trying a warrant case.
9. The position where there are more than one accused and the order of discharge is in respect of some of them is not peculiar only to cases governed by Section 253 but fall also to be dealt with under sub-section (2) of Section 251-A. As such, some of the accused may be discharged in any previous stage of the proceedings as contemplated under sub-section (2) of Section 253 or while acting under sub-section (1) of Section 253 or under sub-section (2) of Section 231-A. But it makes little difference whether the sole accused or some of the accused are discharged. What has to be found by the Magistrate in each of these cases is whether the charge or charges are groundless.
10. The Division Bench of the Madras High Court in the case reported in Kasinath Pillai v. Shanmugam Pillai, ILR 52 Mad. 987: (AIR 1929 Mad 754) has construed when a charge could be considered groundless- That it is not the non-disclosure of an offence that is made the criterion, but the opinion of the Magistrate that the evidence is such that no conviction could be rested on it should be available in order to justify that the charge against the accused who have been, ordered to be-discharged is 'groundless'. This opinion though given when Section 251-A was not inserted in the Code-of Criminal Procedure, will hold the field even in the altered situation where it is the record alone that has primarily to be looked into by the committal court.
11. It is needless also to point put that judicial' opinion has been incessantly stressing the need for any and every judicial order to be of a speaking type. The reasons for insisting on such a course have been that to a Court passing such an order arbitrariness should not be ascribed and that the revisional court will always he able to judge the reasonableness of the order without having to find its own reasons to uphold the order of the Magistrate. We therefore find no justification whatsoever for Magistrates while discharging accused to depart from this salutary principle.
12. Our attention has been invited to the decision of Govinda Menon, J. in ILR (1949) Mad 137: (1948) 1 Mad L.J. 341 ; (AIR 1949 Mad 66). The learned Judge has no doubt observed that
'it would not be proper for a Magistrate discharging some accused and framing charges against others to express at that stage any definite opinion regarding the credibility or otherwise of the witnesses examined for the prosecution.'
It is therein held that since by framing the charge against the other accused the Court should be deemed to be in seisin of the whole case, reasons for the discharge of the accused could be given when the case is disposed of by a final order.
In this view, the learned Judge indeed came to the conclusion that no reasons need be given at the time when the order discharging some accused is passed and that applications by the prosecution for setting aside orders of discharge in cases where charges have been framed against some of the accused alone, or against all the accused under Some sections, should be made only after the Court finally disposed of the matter. The learned Judge relied upon an earlier decision in In re: Govindaraj, AIR ,1938 Mad 396: 1938 Mad WN 38 where Venkataramana Rao J., held the same view. But even the portion extracted by Govinda Menon, J. from that other judgment of Venkataramana Rao, J. and also the facts of the earlier case reveal that the Magistrate who was not giving the reasons at the time when he pronounced the order of discharge had only defer-red to give the reasons, and put it off till the time of the final order, as that Magistrate felt having regard to that particular case that the parties would be embarrassed if the reasons were to be stated at that stage.
Thus the decision in AIR 1938 Mad 396 ; 1938 Mad WN 38 turned upon the question whether the Magistrate in doing so was adting illegally under such circumstances in withholding his reasons and postponing them till the final order in the case. This limited question was answered by Venkataramana Rao, J. by pointing out that the Magistrate in reserving the reasons till the final order, has not become functus officio in respect of the discharged accused.
We are of the opinion therefore that the principle so enunciated by these two decisions is not meant to be of a general application but to a case of the nature which was before Venkataramana Rao, J. Such indeed is the proper way of looking at the observations of Govinda Menon, J. in ILR (1949) Mad 137 : (1948) 1 Mad LJ 341; (AIR 1949 Mad 66) which find justification in the remarks of Balakrishna Ayyar, J. in Re : Nalla Baligadu, : AIR1951Mad0 (FB) and also that of Chandra Reddy, J. (as he then was) in the same decision at page 810 which runs thus:
'But I do not think the learned Judge intended to lay down any invariable rule. These remarks should be understood with reference to the circumstances of the case.'
It is further necessary to notice that the decision of Venkataramana Rao, J. and Govinda Menon, J. in AIR 1938 Mad 396 : 1938 Mad WN 38 and in ILR (1949) Mad 137: (1948) 1 Mad LJ 341 : (AIR 1949 Mad 66) respectively, were rendered with reference to the provisions of Section 253 only and that no direct authority in regard to art order of discharge falling under sub-section (2) of Section 251-A Cri. P, C. has been placed before us.
13. On the second point, we therefore conclude that our view for the above reasons is that an order of discharge passed under sub-section (2) of Section 251-A should contain the reasons of the Magistrate as to why the charges against the accused proposed to be discharged are groundless in the accepted sense and meaning given to that word by the Division Bench in ILR 52 Mad 987 : (AIR 1929 Mad 754).
14. We will now take up the question whether a revision lies against an order of discharge made by the Magistrate in respect of some accused pending final disposal of the case. Some controversy seems to have centered round the position whether when the giving of reasons for discharging some of the accused or the accused of some charges is deferred till the end of the trial, the order of the Magistrate, which does not contain the reasons could be taken in revision under Secs. 435 and 439 of the Code of Criminal Procedure.
A view has indeed been expressed by Govinda Menon, J. in ILR (1949) Mad 137: (1948) 1 Mad LJ 341: (AIR 1949 Mad 66) that as a matter of practice and convenience all applications made by the prosecution for setting aside orders of discharge should be made only after the Court finally disposed of the matter. But this has been considered by the Full Bench in : AIR1951Mad0 (FB) and Balakrishna Ayyar, J. thought that Govinda Menon, J, did not intend to lay down any firm and inflexible rule. Balakrishna Ayyar, J. observed at p. 805 as follows:
'At what stage the revisional authority should be moved and at what stage it should interfere would in a very material degree depend upon the facts particular to each case.'
To the same effect is the observation of Chandra Reddy, J. (as he then was) as expressed in the separate though concurring judgment. The Full Bench were concerned with the question of the order of a discharge of the accused under Section 209 Cri. P. C. There the Stationary Sub-Magistrate, Pulivendla before whom the charge-sheet was laid, held an enquiry under Chapter XVIII, Cr. P. C., and' however, directed that the accused shall be charged, for various other offences, the evidence disclosed-and tried before him.
Thus after an enquiry under Chapter XVIII, the proceedings were converted into one under Chapter XXI of the Cri. P. C. The revision preferred by the prosecution as against this order of the Stationary Sub-Magistrate was allowed by the District Magistrate. Thereupon the High Court was moved to revise the order of the District Magistrate. Any assumption that it is only the conviction or an acquittal that gives rise to an order of discharge has been held to be improper.
After holding that the observations of Govinda Menon, J. in ILR 1949 Mad. 137 : (1948) 1 Mad LJ 341 : (AIR 1949 Mad 66) do not lay down any invariable rule, it was held that it is competent for the District Magistrate or the Sessions Judge to revise the order of discharge without waiting for the termination of the proceedings before the Magistrate. The ratio of the decision of the Full Bench would, in our view, equally govern the entertainment of revision applications against the orders of discharge either under Section 253 or under Section 251-A.
15. But what is contended by the petitioner herein is that when reasons are not given in an order discharging some of the accused or the reasons cannot be gathered in some form or the other from the order, an incurable irregularity has been committed which renders it possible to take the view that no order at all has been passed in such a case. Mr. Gangadhara Rao, for the petitioner placed some reliance upon the case decided in Uttamrao v. Asru Hanwanta, AIR 1948 Nag 341, There Bose, J. was considering an order of discharge passed under Section 253(2) Cri. P. C. by the trying Magistrate.
Therein no reasons were given, nor was there material in that order to satisfy the High Court that the discharge was for good and proper cause. All that appeared in that order as the ground for discharging the accused is that as the complainant was absent, there was no evidence made available to the court. The learned Judge therefore held that the absence of a complainant is not sufficient in cognisable and non-compoundable cases under Chapter XXI and also pointed out the difference between a summons case to which Section 247 applied and a warrant case to which See. 259 applied only if the offence is compoundable and non-cognizable.
The head-note which says 'that the omission to record reasons for discharge is not a curable irregularity' is, in our view, misleading as in fact the argument advanced on behalf of the prosecution, that the omission to record reasons was a curable irregularity was merely noticed. The ratio actually turned upon the question whether there could be discharge for the reason that because the complainant was absent there was no evidence. Therefore, the approach to this question whether a revision lies against any order giving reasons or without the reasons from the point of view of irregularity curable or otherwise is not the proper one.
16. We cannot accept the extreme contention put forward by Mr. Gangadhara Rao, that an order of discharge which does not contain reasons, is no order at all in the eye of the law and there is nothing for a revisional Court to revise. In our opinion an order of discharge which on its face does not show reasons, is nonetheless an order passed by. a competent Magistrate; it may be a bad order but it is nevertheless an order susceptible of being corrected by the Court of revision.
The power of revision under Section 435 or ordering further enquiry under Section 436 is not made to be dependent upon the absence or presence of the reasons in that order of discharge. The correctness, legality and propriety of the order can be gone into by any Court which examines the order of discharge under its revisional powers and uphold the order of discharge or order further enquiry if it is satisfied that the order could not be taken to be without reasons or there is no justification for that order of discharge as the case may be.
In this connection, we may also refer to the decision in Hanumantha Raju v. Ram anna, AIR 13,957 Andh Pra 886. It is relied upon by the learned counsel for the petitioner, but it does not support the proposition that a revision is not entertainable because reasons in an order of discharge are not given. Therein Subba Rao, C. J. (as he then was) was considering the correctness, legality and propriety of an order of the District Magistrate (Judicial) West Godavari, who dismissed a revision application filed against an order by the Sub-Magistrate discharging five of the seven accused before him.
Though it appears that the absence of reasons in that order has been made a ground of attack to question the powers of the District Mgistrate to entertain a revision against the order of the Stationary Sub Magistrate, what has been actually laid down by Subba Rao, C. J. (as he then was) is that 'when reasons are not given and when there are other circumstances making it not advisable for the revisional Court to interfere at that stage, the revisional court will be well within its rights in dismissing the revision.' It cannot therefore support an argument that a revision is incompetent against an order of discharge which does not give reasons therefor.
The learned Judge has no doubts about the power to entertain a revision even against the orders of discharge which do not contain the reasons, but) only justifies the dismissal of the. revision petition which has been entertained on the grounds as above stated. It is no doubt true that the Full Bench in : AIR1951Mad0 were not concerned with an order of discharge wherein reasons are given, for the order it was considering contained reasons.
Nevertheless, in our view, it is an authoritythat a revision will also lie against any order ofdischarge in respect of some accused or the accusedof some of the offences even before the final orderis passed after the trial of the accused for the chargesframed against the undischarged accused. We wouldgo further and point out that it is not always thatthe reasons for discharge, of accused would overlapthose for acquittal of the accused, and that it isespecially so, inasmuch as the special procedurecontained in sub-section (2) of Section 251-A does notcontemplate any discussion of the evidence whichis not before it.
The giving of the reasons for discharging the accused is for this reason also inevitable. We feel therefore impelled to hold that a revision lies against an order of discharge made by a Magistrate in respect of some accused pending final disposal of the case, even if reasons are not given in that order itself.
17. From what has been said above, it would not be correct for the Addl. Sessions Judge, Eluru, to rely upon the decision in ILR (1949) Mad 137: (AIR 1949 Mad 66) and held that a revision petition against the orders of the Principal Judicial Second Class Magistrate, Tanuku, is not competent. Further, there could be no dismissal of a revision application merely on the ground that the order of discharge does not assign any reasons in support of it. If the learned Additional Sessions Judge dismissed the revision petition on any of these grounds, we would not have hesitated to interfere with the order of the Additional Sessions Judge, Eluru.
18. But we find that the learned Additional Sessions Judge has gone through the record and satisfied himself from the record that the statements of some of the witnesses are conflicting as accused 4 to 7 were implicated only in the statements given before the Circle Inspector while nothing incriminating against these accused was stated before the Sub-Inspector. We consider that this view of the Additional Sessions Judge provides the reasons even for the order of the Magistrate. In view of this we are unable to interfere with the order of the Addl. Sessions Judge. It follows that this petition should fail. It is therefore dismissed.