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Ram Swaroop Himmat Singh Vs. State and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Judge
Reported in1966CriLJ833
AppellantRam Swaroop Himmat Singh
RespondentState and anr.
Excerpt:
.....the jurisdiction, to discharge the accused at any stage of the proceedings, the learned additional district magistrate has erred in law in interfering with his order. 7. a perusal of section 253 makes it evident that under clause (1) the magistrate enjoys a discretion to discharge an accused only after all the evidence referred to under section 252 has been taken by him and he has made such examination of the accused as he deems necessary and then feels satisfied that no case has been made out against the accused......aforesaid cheques were not honoured and that the applicant had misappropriated that amount. the learned magistrate before whom the complaints were filed took cognizance of the case and summoned the accused. the complainant had filed a list of nine other witnesses besides himself and they were summoned by the magistrate for evidence.2. the complainant was examined under section 252, cri.p.c. on 29.6.1963 and was cross-examined partly on 24.8.1963 and 11.9.1963 was fixed as the date for his further cross-examination. on that date as the accused and his counsel were both absent the learned magistrate discharged the witnesses and fixed 23.9.1963 for the statement of the accused and for framing of the charge. on 23.9.1963 he recorded the statement of the accused and on 30.9.1963 passed an.....
Judgment:
ORDER

H.C.P. Tripathi, J.

1. One Bhagwati Narayan, Commerical Manager, Rampur Distillery and Chemical Co. Ltd., Rampur, filed two complaints under Section 409, I.P.C. against the applicant on the assertion that the applicant was appointed as an agent of the said company in 1057 for sale of rectified and denatured spirit supplied by the Company in the whole of Uttar Pradesh and West Bengal on the condition that he would be paid commission for the same on realization of the price from the customers, An allegation was made in the complaints that goods of the value of about Rs. two lacs were sold through the accused, that he realised price of the same from the customers, that he handed over cheques to the tune of Rs. 44,024.59 nP. to the complainant on account of the price of the goods sold through him, that the aforesaid cheques were not honoured and that the applicant had misappropriated that amount. The learned Magistrate before whom the complaints were filed took cognizance of the case and summoned the accused. The complainant had filed a list of nine other witnesses besides himself and they were summoned by the Magistrate for evidence.

2. The complainant was examined under Section 252, Cri.P.C. on 29.6.1963 and was cross-examined partly on 24.8.1963 and 11.9.1963 was fixed as the date for his further cross-examination. On that date as the accused and his counsel were both absent the learned Magistrate discharged the witnesses and fixed 23.9.1963 for the statement of the accused and for framing of the charge. On 23.9.1963 he recorded the statement of the accused and on 30.9.1963 passed an order for his discharge. The complainant went up in revision before the learned Additional District Magistrate, Rampur, who was of the view that the Magistrate 'was bound to take all such evidence as may be produced in support of the prosecution', and as he has failed to do so the order of discharge was improper. He, therefore, allowed the revision, set aside the order or discharge and sent back the case to the Judicial Officer No. II for further inquiry into the complaint.

3. Against the aforesaid order of the Additional District Magistrate the accused has come up in revision before this Court.

4. Learned Counsel for the applicant has strenuously contended that as the Trial Magistrate has given good reasons for Holding that the dispute between the parties was of a Civil Nature and as he had the jurisdiction, to discharge the accused at any stage of the proceedings, the learned Additional District Magistrate has erred in law in interfering with his order.

5. Section 252(2) provides that the Magistrate shall ascertain, from the complainant the names of any persons likely to be able to give evidence for the prosecution, and shall summon to give evidence before himself such of them as Tie thinks necessary. Under this section a duty is east on the Magistrate to find out from the complainant the persons who are likely to be acquainted with the facts of the case and to summon all those whom he thinks necessary for such purpose.

6. Section 253 reads:

253(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, it an-rebutted, 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.

7. A perusal of Section 253 makes it evident that under Clause (1) the Magistrate enjoys a discretion to discharge an accused only after all the evidence referred to under Section 252 has been taken by him and he has made such examination of the accused as he deems necessary and then feels satisfied that no case has been made out against the accused. Sub-section (2), however, gives a discretion to the Magistrate to discharge the accused at any stage of the proceedings if he considers the charge to be groundless.

8. It will be observed that while Sub-section (1) of Section 253 makes it incumbent on the Magistrate to examine all the evidence which he had summoned under Section 252 before discharging the accused, no such limitation is placed on his power under Sub-section (2) of the same section.

9. It is the cardinal rule of interpretation that the different provisions occurring in a statute should be construed in a manner as to bring out harmony in them. Section 252 casts a duty on the Magistrate to summon all the evidence that he thinks necessary to examine in support of the allegations made in the complaint. Section 253, Sub-clause (1) makes it incumbent on him to examine that evidence before he can discharge the accused, while Sub-section (2) of Section 253 gives him an unfettered discretion to discharge the accused at any stage of the proceedings provided he considers the charge to be groundless.

10. In my opinion, the intention of the legislature appears to have been that where the Magistrate had summoned some witnesses after ascertaining from the complainant to give evidence in support of the complaint, he must examine those witnesses who are present and available in Court before he can discharge the accused.

11. I am fortified in my view by an observation of Hon'ble Desai, J. (as he then was) in the case of Prem Narain Gupta v. Shiva Prasad 1961 All TJ 210 that case it has been observed:

If after taking the evidence of all the witnesses that are actually produced by the complainant, no more witnesses being available on the date for their evidence, the Magistrate finds that it makes out no case against the accused he becomes bound to discharge him. Once the Magistrate has thought it fit to exercise his discretion in summoning certain witnesses for evidence and if those witnesses are present in court and available for evidence it will be incongruous to hold that though at one particular stage of the proceedings the Magistrate had thought their evidence to be necessary for finding out the truth, he was free to consider that evidence wholly unnecessary to another stage of the proceeding for the same purpose.

12. The impugned order of the learned Additional District Magistrate shows that the complainant had not closed his evidence before the charge and there is nothing on the record to suggest that other witnesses summoned by the Magistrate were not available for evidence on the date when he closed the prosecution evidence. In this view of the matter, I am of opinion that the order passed by the learned Additional District Magistrate quashing the order of discharge and sending back the east to the Judicial Officer for further enquiry is reasonable and does not call for interference.

13. The revisions are dismissed.


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