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Kanhei Pradhan Vs. Basanti Khati - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in50(1980)CLT563; 1981CriLJ266
AppellantKanhei Pradhan
RespondentBasanti Khati
Cases ReferredShankar Dass v. Mahu Ram.
Excerpt:
.....and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - 5. a plain reading of the above provision clearly indicates that a magistrate has the power to discharge an accused of an offence which is either compoundable or is a non-cognizable one......and on 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 has been framed, discharge the accused.5. a plain reading of the above provision clearly indicates that a magistrate has the power to discharge an accused of an offence which is either compoundable or is a non-cognizable one. the clauses 'and the offence may be lawfully compounded' and is not a cognizable offence are separated by a disjunctive conjunction 'or' which indicates that they are alternative and not cumulative. thus, the section applies not only to cases where the offence is a compoundable one but also where.....
Judgment:
ORDER

P.K. Mohanti, J.

1. An order under Section 249 Cr. P.C. discharging the accused of an offence under Section 493 I.P.C. is under challenge in this revision.

2. A complaint had been filed by the opposite party against the petitioner for an offence under Section 493 I.P.C. cm 8-2-79 the complainant was absent and a petition for adjournment was filed on her behalf. The learned Chief Judicial Magistrate before whom the case was pending trial, rejected the petition for adjournment and since the case was a non-cognizable one, he discharged the accused in exercise of his powers under Section 249. Cr. P.C. An application in revision against that order was filed before the learned Sessions Judge of Sundargarh who set aside the order of discharge on the ground that the offence under Section 493 I.P.C. being non-compoundable, the provisions of Section 249 Cr, P.C. were not attracted. Aggrieved by the order of the learned Sessions Judge, the petitioner-accused has come up in revision.

3. It is urged on behalf of the petitioner that the offence under Section 493 I.P.C. being non-cognizable though not compoundable. the order of discharge could be passed under Section 249 Cr. P.C.

4. Section 249 Cr. P.C. reads as follows:

When the proceedings have been instituted upon complaint, and on 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 has been framed, discharge the accused.

5. A plain reading of the above provision clearly indicates that a Magistrate has the power to discharge an accused of an offence which is either compoundable or is a non-cognizable one. The clauses 'and the offence may be lawfully compounded' and is not a cognizable offence are separated by a disjunctive conjunction 'or' which indicates that they are alternative and not cumulative. Thus, the section applies not only to cases where the offence is a compoundable one but also where though it is not compoundable, it is non-cognizable. The power under the section can be exercised in respect of all compoundable offences, whether, cognizable or not, and all non-cognizable offences, whether compoundable or not.

6. Section 249 of the new Code corresponds to Section 259 of the old Code. Section 259 was amended by the Amending Act of 1923 and the words 'or is not a cognizable offence were added after the words 'may be lawfully compounded'. Prior to the amendment, the power was exercisable in cases dealing with offences that could be lawfully compounded. The intention behind the amendment was to enlarge the scope of Section 259 by making it applicable also to all non-cognizable offences. If the intention of the legislature had been that the powers conferred by the section should be exercised in respect of an offence which is both compound-able and non-cognizable, it would have used the conjunction 'and' or 'but' instead of the disjunctive conjunction 'or' between the clauses 'and the offence may be lawfully compounded' and 'is not a cognizable offence'. The scope of the section would be curtailed instead of being enlarged if it is held that the power conferred by the section is exercisable when an offence is both compoundable and a non-cognizable one. Similar view has been taken in AIR 1963 Him. Pra. 32 : 1963 (2) Cri LJ 371 Shankar Dass v. Mahu Ram.

7. In the present case, the offence under Section 493 I.P.C. is non-cognizable though not compoundable. Therefore, the trial court had the discretion to discharge the accused. The learned Sessions Judge erred in holding that the provisions of Section 249 are not attracted to a case which is non-cognizable and non-compoundable.

8. In the result, I allow the revision, set aside the order of the learned Sessions Judge and restore that of the learned Chief Judicial Magistrate.


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