A.M. Bhattacharjee, Actg. C.J.
1. By the impugned order passed in a warrant-case instituted upon a complaint, the learned Magistrate has acquitted the accused on the ground of non-appearance of the complainant. This being a warrant-case, an acquittal could only be ordered after the charge was framed; but as no charge was framed before the impugned order of acquittal was passed, the order must and cannot but be treated as an order of discharge, by which alone an accused in a warrant-case can be released therefrom at apprecharge stage, whether under Section 253 or Section 259 or, say, Section 494(a) of the Criminal P.C. 1898, that being the Code still applying in Sikkim. In fact, both Mr. N.B. Kharga, the learned Public-Prosecutor, and Mr. A. Moulik, the learned Advocate appearing for the accused-respondent, have attempted to support the order as being one of discharge under Section 259 as no order of acquittal could in any way be passed in this Case at that stage when witnesses or the complainant were still being examined and the date when the impugned order was passed was also fixed for examination of further witnesses and the learned Magistrate was yet to consider the question of framing of charge. Nor any of the learned Counsel for the respondents has urged that the impugned order having been recorded as one of acquittal, no revision would lie because of the prohibition contained in Section 439(5) of the Code, whereunder existence of a right to appeal against an order of acquittal operates as a bar to move the High Court in revision. If the learned Magistrate had jurisdiction to order acquittal in this case at this stage, then such an order, even if bad in law or on facts or on both, would not have been open to revision, if an appeal was available. But if the order of acquittal, as such, is absolutely beyond the jurisdiction of the Court and ultra vires its legal competence in the sense that the Court had no power under the law to pass such an order, the order cannot stand in the way of any revision, and the order of release in such a case is to be treated as one of discharge, which the learned Magistrate could pass under Section 259. At any rate, this question need not also be pursued as any challenge to the impugned order, whether by way of appeal or of revision, would lie to this Court only and any intervention that this case may require would be within the competence of this Court, whether sitting in appeal or in revision.
2. But even treating the impugned order as one of discharge, as unanimously urged by the learned Counsel for all the parties, can it be justified under the provisions of Section 259, which alone provides for such discharge of accused on the ground of absence of the complainant? Section 259 reads thus:
Absence of Complainant-When the proceedings have been instituted upon complaint, and upon any day fixed for the hearing of the case the complainant is absent, and the offence may be lawfully compounded, or is not a cognizable offence, the Magistrate may, in his discretion, notwithstanding anything hereinbefore contained, at any time before the charge is framed, discharge the accused.
3. The expression 'the offence may be lawfully compounded, or is not a cognizable offence' in Section 259 has given rise to some difference of opinion on the question as to whether both the conditions of the offence being compoundable as well as being non-cognizable must be satisfied before this Section can be invoked. An offence may be compoundable and yet cognizable, e.g., offence under Section 447, or Section 448, Penal Code. And again an offence may be non-compoundable and yet non-cognizable, e. g., offence under Section 465, or Section 466, Penal Code. One view is that because of the word 'or' used disjuncting the expression 'may be lawfully compounded' and the expression 'is not a cognizable offence', the two conditions must also be understood disjunctively and the fulfilment of either of the two conditions would be sufficient to attract the provisions of Section 259 and that both the conditions as to the offence being compoundable as well as non-cognizable need not co-exist for the application of this Section. The other view is that the expression 'or' in the context of Section 259 is to be construed to have a conjunctive connotation and therefore Section 259 can only operate when both the conditions are satisfied, that is, when the offence is compoundable as well as non-cognizable. For this latter view, reference may be made to the decision in Uttamrao Shripat v. Asru Hanwanta AIR 1948 Nag 341 1948-49 Cri LJ 519, where Vivian Bose, L, (as his Lordship then was) observed (at 342) that 'the absence of the complainant is not sufficient in cognizable and non-compoundable cases under Chapter 21' and that 'in warrant-cases Section 259 applies and the power to discharge the accused in the absence of the complainant is only given in a compoundable and non-cognisable case'. It must, however, be noted that in this case the offence having been both non-compoundable and cognizable, the question as to whether the two conditions of compoundability and non-cognizability are cumulative or alternative did not arise for consideration and was also not considered in fact. For the former view, reference first should be made to the decision in Shankar Dass v. Mahu Ram where the learned Judicial Commissioner, after an elaborate discussion of the question, dissented from the decision in Uttamrao Shripat (supra) and observed (at 34) that the interpretation of this section which.is both obvious and in conformity with the intent of the Legislature is that the power conferred by it may be exercised with reference to all compoundable offences, whether cognizable or not and all non-cognizable offences, whether compoundable or not' (emphasis added). This decision has been relied on by a learned single-Judge of the Bombay High Court in Ganesh Narayan v. Eknath 1978 Cri LJ 1009 at 1011 and also by a learned single-Judge of the Orissa High Court in Kanhei Pradhan v. Basanti 1981 Cri LJ 266 at 267, while construing Section 249 of the new Criminal P.C. of 1973, which is virtually a reproduction, with negligible verbal change, of this Section 259 of the Criminal P.C. 1898, by which we are governed in Sikkim.
4. Section 259, as it stood before the Amendment of 1923, empowered a Magistrate to discharge an accused in a warrant case instituted upon complaint on the ground of the absence of the complainant on any date of hearing, if the offence could be lawfully compounded and mentioned nothing about the cognizability or non-cognizability of the offence. But there are offences which, though not compoundable, have nevertheless been regarded by the Legislature not to be of such nature of gravity as to justify arrest by the police without warrant and have accordingly been made non-cognizable. It was thought that if private prosecutions for compoundable offences could be allowed to be terminated by discharging the accused on the ground of absence of the complainant, then the same power should be made available to the Magistrate in private prosecutions for non-cognizable offences also even if those are non-compoundable and accordingly the words 'is not a cognizable offence' were inserted by the Amendment Act of 1923 after the words 'and the offence may be lawfully compounded' in Section 259. It is true that non-compoundable or cognizable offences are generally more serious in nature than compoundable or non-cognizable offences. It is also true that if the expression 'or' in. Section 259 is thus construed disjunctively, as has also been done in Shanker Dass 1963 (2) Cri LJ 371 (Him Pra) (supra), Ganesh Narayan 1978 Cri LJ 1009 (Bom) (supra) and Kanhei Pradhan 1981 Cri LJ 266 (Orissa) (supra), then in all compoundable cases, even though cognizable, and in all non-cognizable cases, even though non-compoundable, the accused can be discharged on the ground of the absence of the complainant under Section 259. But as already noted, the provisions of Section 259, as it stood before the Amendment of 1923, whereby the words 'or is not a cognizable offence' were inserted, clearly applied to all compoundable offences, whether cognizable or not, but could not apply to those offences which, though made non-cognizable because of their lesser gravity, were not made compoundable and the words 'or is not a cognizable offence' were inserted only to extend the operation of this Section to all such non-cognizable offences, even though non-compoundable.
5. It should be noted that even though generally non-compoundable or cognizable offences are more serious in nature and gravity than compoundable or non-cognizable offences, the Code, by Section 247, has all along empowered Magistrates in all summons Cases to acquit accused persons prosecuted upon complaints and there are various offences, triable as Summons Cases, which are both non-compoundable as well as cognizable, e.g., offences under Section 143, Section 151, Section 153, Section 157, Section 158, Section 171, Section 269, Section 277, Section 279, Section 292, Section 293 etc. of the Penal Code. If it could be shown that the scheme of the Code never was, and the Code has never contemplated, discharge or acquittal of an accused in any cognizable offence merely on the ground of the absence of the complainant, it could have been argued that by inserting the words 'or is not a cognizable offence' in Section 259, discharge of an accused on the ground of the absence of the complainant was intended to be expressly ruled out in all warrant cases for cognizable offences and that after the Amendment of 1923, absence of the complainant would justify the discharge of the accused only in cases of such compoundable offences which are also non-cognizable. But since acquittal of the accused in Summons Cases on the ground of absence of complainant has been mandated by Section 247 of the Code since its inception, whether or not the offence is cognizable or non-cognizable, compoundable or non-compoundable, there would be no justification to hold that as a result of insertion of the words 'is not a cognizable offence' in Section 259, the Section would apply only when the offence is not only compoundable but is also non-cognizable. Section 259, therefore, is to be construed to apply to all warrant-cases instituted upon complaints Where the offence is compoundable, whether cognizable or not and also where the offence is non-cognizable, whether compoundable or not. Such a construction would also be in conformity with the meaning of the expression 'or' in Section 259 (also repeated in Section 249 of the new Code of 1973) which ordinarily has a disjunctive denotation and not a conjunctive connotation.
6. The case at hand was under Section 379, Penal Code, which is undoubtedly a cognizable offence and, therefore, Section 259 would apply to this case only if the offence is compoundable. According to the Second Schedule of the Code, offence under Section 379 is compoundable only when the value of the property stolen does not exceed Rupees two hundred fifty. There is clear and undisputed evidence on record that the bullock, which is alleged to be the object of theft, is worth more than Rupees three hundred and, therefore, the offence is clearly non-compoundable. The learned Magistrate had, therefore, no semblance of jurisdiction to discharge the accused on the ground of the absence of the complainant as the offence was both non-compoundable as well as cognizable. The impugned order must, therefore, be set aside.
7. It is also now settled law that absence of the complainant would justify a Magistrate discharging an accused under Section 259 only when on the date in question his presence is necessary for further f progress of the case. Section 259 does not oblige a Magistrate to proceed thereunder but only enables him to do so by vesting him with a discretion in the matter, which, it would be trite to say, must be exercised judicially. If a Magistrate proceeds under Section 259 even though on the date he proceeds to do so the presence of the complainant was not at all necessary for effective progress of the case, it would give an impression that the Magistrate was only eager to use the absence of the complainant as a pretext to get rid of a case pending before him. I have no doubt that such use of Section 259 by a Magistrate, without applying his mind as to whether the absence of the complainant was of any effect, would be a clear misuse of that Section. The use by the learned Magistrate of the expressions 'this case therefore stands dismissed for default' and 'accused stands acquitted' also go to show that the learned Magistrate did not duly and properly apply his mind to the provisions of Section 259 while passing the impugned order.
8. The revision accordingly succeeds and is accordingly allowed and the impugned order discharging the accused is quashed. The records to go down at once to the learned Magistrate to enable him to proceed to make further inquiry in this case according to law. The learned Magistrate should, however, note that if on the evidence on record and such further evidence, if any, as may be adduced by the complainant, he finds no case to have been made out against the accused justifying framing of charge, nothing herein shall prevent him from discharging the accused.