Sharfuddin Ahmed, J.
1. The question for consideration in this revision is whether a Magistrate is competent to discharge the accused under Section 253(2), Cri.P.C. without taking any evidence whatsoever. It arises in the following circumstances:
2. The petitioner herein filed a complaint in C.C. No. 2709/4 of 1961 before the III City Magistrate. Hyderabad, against the Principal of the School and the Accountant of which he was a teacher of technical section. It was stated that the petitioner was a Policy Holder of Life Insurance Corporation of India for a sum of Rs. 2,000/-. A sum of Rs. 565 P. was payable by him as premium. This amount had to be collected and paid over to the Life Insurance Corporation in accordance with the terms of the policy by the School where the petitioner was employed. The procedure that was being followed was that at the time of disbursement of the salary this amount would be deducted from the salary of the petitioner and sent to the Divisional Officer, Life Insurance Corporation. A receipt would be issued by the said officer. The last premium was deposited by the respondents on 28th January, 1960 and the last premium receipt was issued to the complainant-petitioner on 17th March, 1960. Afterwards, the petitioner did not receive any premium receipts though the amount was being deducted by the accused every month. After waiting for some time the petitioner sent an application to the Corporation Officer for issuing receipts who apprised that no premium has been received from the employer of the complainant and consequently the policy stood lapsed. It was alleged that both the accused in collusion with each other had misappropriated the amount and as such were liable for criminal breach of trust.
3. The learned Magistrate after recording the statement of the complainant registered the case and issued the summonses to both the accused-respondents. The respondents filed a petition to discharge as the amount has been paid and was held up due to inadvertence there being no mala fide on their part. Thereupon, the learned Magistrate on hearing both the parties recorded an order of discharge under Section 253(2), Cri.P.C. on 18-7-1961.
4. Aggrieved by the said order, the petitioner went in revision to the Chief City Magistrate and Additional Sessions Judge, Hyderabad in Criminal R.P. No. 457 of 1961. The learned Sessions Judge held that there was nothing to show that there was any misappropriation or conversion of money to their own use by the accused. In that view, he held that it was not a fit case calling interference with the order of the learned Magistrate. Accordingly he dismissed the revision petition. Hence this revision case. The main argument advanced by the learned Counsel for the petitioner is that the Magistrate was not competent to discharge the accused under Section 253(2), Cri.P.C. without recording some evidence. It is common ground that the learned Magistrate did not examine the complainant in the presence of the accused apart from looking into their application for discharge. Obviously, he accepted the plea of the respondents that the amount could not be sent in time either due to other work, negligence or by oversight and that it was not a case of dishonest retention without giving an opportunity to the complainant-petitioner to prove his allegation notwithstanding an application in that respect. It is contended that Section 253(2), Cri. P.C. did not authorise the Magistrate to exercise the discretion in that manner. Section 253, Cri.P.C. reads as under:
(1) If, upon taking all the evidence referred to in Section 252, and 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, the Magistrate shall discharge him.
(2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless,
5. On a plain reading of the section it appears that an order of discharge under Section 253(1) has to follow if upon taking all evidence referred to in Section 252, Cri.P.C' the Magistrate finds that no case against the accused has been made out, which if unrebutted, would warrant his conviction. Under Sub-section (2) however, the Magistrate is authorised to discharge the accused at any previous stage if he considers the charge to be groundless for reasons to be recorded by him. The distinction seems to be that while the order of discharge under Sub-section (1) is incumbent on taking all the evidence adduced, the order under Sub-section (2) can be made at any previous stage but for reasons to be recorded by such Magistrate, The emphasis seems to be on recording reasons for such a discharge. The significance of the words 'previous stage' in this sub-section has to be considered. It is to be borne in mind that the procedure followed in the instant case is one prescribed in Section 252, Cri.P.C. It provides that when the accused appears or is brought before a Magistrate such Magistrate shall proceed to hear the complainant (if any) and take all such evidence as may be produced in support of the prosecution. The following section viz., 253 lays down that if, upon taking all the evidence referred to in Section 252, the Magistrate finds that no case has' been made against the accused he shall discharge him. Sub-section (2) authorises him to discharge the accused at any previous stage if, for reasons to be recorded, he considers the charge to be groundless. So that, the normal procedure for any case instituted otherwise than on a police report on the appearance of the accused is that which is provided in Section 252 and Section 253(1), Cri.P.C. The extra-ordinary powers under Section 253(2) can be exercised if on the face of it, the charge appears to be groundless. Could it be said, therefore, that the Magistrate can exercise this power even on the date when the accused makes his appearance i.e., without hearing the complainant and taking all such evidence that may be produced in support of the prosecution? If the answer is in affirmative, it will not be in consonance with the provisions of Section 204, Cri.P.C. where the issue of process against an accused either warrant or summons is when the Magistrate taking cognizance of the offence feels that there is sufficient ground for proceeding in the case. In other words, the position would be that a Magistrate taking cognizance of the offence would issue summons or warrant, as the case may be, under Section 204 in the view that there is sufficient ground for proceeding, but as soon as the accused appears he would be competent to discharge him on the same data considering the charge to be groundless. am at a loss to appreciate how the mere appearance of the accused would so radically alter the position unless and until something further was brought on record to sustain such an order. The words 'previous stage' therefore, in Section 253(2), Cri.P.C. cannot be read as meaning 'any stage in the case'; these will be read as meaning any stage previous to the position contemplated in Sub-section (1) of Section 253, Cri.P.C. Now Section 253(1) provides for taking all the evidence referred to in Section 252 and the order of discharge has to follow in the event the Magistrate finds that no case against the accused has been made out which, if unreported, would warrant his conviction. 'Previous Stage in this context would be any stage before the recording of the entire evidence. To my mind Sub-section (2) empowers the Magistrate to discharge the accused if he finds the charge to be groundless on recording a few witnesses or even on examination of the complainant. The restriction imposed in Sub-section (1) has been relaxed as the Magistrate has been empowered to act under Sub-section (2) if before completing the evidence he finds the charge to be groundless. It does not do away completely with the necessity of examining some witnesses or hearing the complainant to say the least before recording an order of discharge. The words 'previous stage' also appear in Section 254, Cri.P.C. Therein, the Magistrate has been empowered to frame a charge at any previous stage. of the case if there is ground for presuming that the accused has committed an offence. The interpretation I have placed on the words 'previous stage' in Section 253(3), Cri.P.C. seems to be consistent with the use of the words and vesting of power in the Magistrate to frame charge under Section 254, Cri.P.C.
6. I am, therefore, inclined to hold that the Magistrate was not competent to discharge the accused in the case without taking any evidence whatsoever. The learned Counsel for the respondent has cited a number of cases vide Kunj Behari Lal v. Emperor AIR 1926 All 461 : Shiv Datta v. B.K. Sood AIR 1940 Lah 40; Mohd. Ibrahim v. T.C.H. Naughton AIR 1941 Sind 198 and Sundar Das v. Fardun Rustom AIR 1939 Cal 329 to substantiate his argument. that the Magistrate has power to discharge the accused under Section 253(2), Cri.p.C. The competency of the Magistrate to pass an order under this section is not in dispute. The question is at what stage this power can be exercised. Unfortunately, none of the rulings cited above referred to this aspect of the case. What has been decided in most of them is that the Magistrate is competent to discharge the accused even before recording the entire evidence. That proposition is not contested. The only case which seems to have a bearing on this question is R.M.D. Chamarbaughwalla v. Ramchandra Rao 1957-2 Andh WR 368. Therein it has been held that:
Sub-section (2) of Section 253 of the Criminal Procedure Code as is worded would make it clear that there is nothing to prevent the Magistrate from taking the step of closing the case and discharging the accused immediately after the filing of the complaint if he feels that the charge is groundless.
The headnote is somewhat misleading, for it gives the impression that the learned Judge was dealing with a case under Section 203 Criminal Procedure Code which provides for the dismissal of the complaint even before the appearance of the accused if the Magistrate finds that there are no sufficient grounds for proceeding. But, a reading of the judgment reveals that it was a case where the District Magistrate recorded the statement of the complainant in the presence of the accused and came to the conclusion that the complaint did not disclose any criminal offence under Section 420 Indian Penal Code while the 2nd offence was beyond his competency and in that view had discharged the accused under Section 253(2) Criminal Procedure Code. The learned Judge has held that any bar in the way of the Magistrate discharging the accused before the whole evidence is placed before him, is removed by Section 253(2) Criminal Procedure Code and has supported his view from the decision in AIR 1939 Cal 329, a case which has been referred to above. As observed in the preceding paras this ruling also does not help the respondent as in that case at least the complainant was examined in the presence of the accused. In the instant case, the learned Judge has not chosen to hear the complainant. I am, therefore of the view that the order of discharge recorded by the Magistrate is premature.
7. The next argument advanced before me is that prima facie there is no case for an offence under Section 406 Indian Penal Code. I purposely refrain from commenting on this aspect in the view I have taken that the order of discharge by the learned Magistrate is not sustainable. I, therefore, allow the revision case, set aside the order of discharge passed by the trial Court and direct the Magistrate to proceed with the complaint according to law.