P. Govinda Menon, J.
1. This revision by the complainant in Calendar Case 377 of 1964 is to set aside the order of the Sub Divisional Magistrate, Neyyattinkara discharging the accused (respondents 1 to 10) under Section 253 (2) on the ground that the charge was groundless. All the respondents except the fourth respondent was served with notice in this revision petition. In spite of various attempts the fourth respondent could, not he served and so the case against him was split up and separately numbered as Crl. R. P. 3/66 So this order is only in respect of respondents 1 to 3 and 5 to 10.
2. The case against the accused was under Section 148 and Sections 447 and 427 read with Section 149, I. P. C., in that they trespassed into the property which had been delivered over to PW 1 through the civil court. All the accused except accused 3 and 4 appeared before the Sub Divisional Magistrate, but the whereabouts of accused 3 and 4 were not known and summons could not he served on them. Thereupon the complainant was asked to furnish their correct address by 18 1-65, but on that day when the case was called on for hearing the complainant was absent and the Sub Divisional Magistrate passed the impugned order. The legally of the order is questioned in this revision.
3. It is the warrant case procedure that applies to this case. An offence under Section 148 is cognisable and non-compoundable. The procedure for such trials is contained in Chapter XXI Section 252(2) Cr. P. C. requires the Magistrate to:
'..... ascertain from the complainant or otherwise the names of any persons likely to he acquainted with the facts of the case and to be able to give evidence for the prosecution', and then says:
'and shall summon to give evidence before himself such of them as he thinks necessary.'
And then comes Section 253 Cr. P. C. which provides in Sub-section (1) for the discharge of the accused:
'If, upon taking all the evidence referred to in Section 252, and making such examination of the accused as the magistrate thinks necessary, he finds that no case against the accused has been made out which, if un-rebutted, would warrant his conviction, the Magistrate shall discharge him.'
Sub-section (2) leaves Magistrate a discretion for discharging the accused if he considers the charge to he groundless. The sub-section says: '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.'
4. So Section 253 (2) empowers a Magistrate to discharge the accused person only if for reasons to be recorded by such Magistrate, he considers the charge to be groundless. The Magistrate has no jurisdiction to pass an order discharging the accused without applying his mind to the evidence before him. The application of Section 253 (2) depends upon the evidence already recorded The material word is 'groundless' and it means there are no grounds to sustain the charge The Magistrate has to arrive at the conclusion judicially and not capriciously It is true that the Magistrate may in a suitable case come to the conclusion that the charge is groundless even before he had heard the complainant under Section 252 Such a case might well be one in which the Magistrate in issuing the process under Section 204 has mistakenly belived that an offence has been disclosed by the complaint and on the matter being brought to his attention when the case comes before him he sees his error and decides that in fact even if the allegation in the complaint are true no criminal offence is disclosed. But in a case where the complaint docs, in fact, disclose the commission of a prima facie offence the Magistrate cannot find the charge to be groundless until the complainant has been examined. If the accused is not served, the Magistrate has to take coercive process to secure his presence or split up the case and proceed against the accused who are available. The mere absence of the complainant will not be a ground to hold that the charge is groundless and discharge the accused Section 259 Cr. P.C. can have no application to this case.
5. I may, in this connection, refer to some of the cases. The first case is the one in Mt. Shamsunneesan Khalun v. Romjan Sheikh, AIR 1942 Cal 428 (1). In that case a complaint of cheating was filed and prosecution witnesses were examined and the case was posted for hearing arguments. On that date the accused was absent. Then a warrant of arrest was issued but in spite of various attempts the accused could not be got at. So the Magistrate passed an order discharging the accused under Section 253 (2) Cr. P. C. holding that it was useless to wait and drag on the case indefinitely It was held:--
'Section 253 (2) of the Code empowers a Magistrate to discharge an accused person only if for reasons to be recorded by such Magistrate he considers the charge to he groundless. Far from recording any reasons to show that the Magistrate had considered the charge to be groundless it is apparent that the Magistrate had evidence before him and had not as yet applied his mind to the question whether the charge had been substantiated or not. In the circumstances the Magistrate had no jurisdiction to pass an order discharging the accused under Section 253 (2), Criminal P. C.'.
The order of discharge was, therefore, set aside.
6. In the case in Uttamrao Shripat v. Asm Hanwanta, AIR 1948 Nag 341, a complaint was filed under Section 429 I. P. C. After a number of adjournments when the case was finally posted for hearing, the complainant happened to be absent and the Magistrate purporting to act under Section 253 (2) discharged the accused stating 'the complainant being absent there is no evidence against accused person'. It was held--
'Under Section 253 (2), the reasons need not be recorded in any particular form and it would be enough if the reasons which motivated the discharge of the accused can be gathered from the order, but reasons there must be in some form or other. There must be enough material in the order to satisfy the High Court that the discharge was for good and proper causes. Omission to record reasons is not a curable irregularity.'
7. The order of the Sub Divisional Magistrate is, therefore, patently illegal and has to be set aside The Magistrate will do well to read and understand the sections before deciding to apply them. The order of the court below is set aside and the learned Magistrate is directed to take the case on file and dispose of the same in accordance with law.