P. Govinda Menon, J.
1. The complaint in Calendar Case No. 12S of 1961 has filed this revision petition to quash the order of the District Magistrate of Qulin discharging the accused under Section 253(2), Cr.P.C. The complaint was for an offence of defamation under Sees. 500 and 501 o( the Penal Code, the allegation being that the accused had defamed him by publishing false imputations against him in the issue of the Malayalam paper 'Kaumudi', dated 24th September I960. After the sworn statement was taken the complaint was taken on file and process was issued to the accused. The case then underwent a number of adjournments as the complainant did .not appear in court for his examination. Finally the cases stood posted for hearing to 16th March 1962, on which date also the complainant absented himself. Witnesses were also not present. Adjournment was asked for but the learned Magistrate came to the conclusion that there was no reason able cause for the absence of the complainant and: discharged the accused under Section 253(2) on the ground that the charge leveled against the accused was groundless. It is the legality of this order that is questioned: in this revision petition.
2. Section 252 of the Criminal Procedure Code deals with the procedure in; a warrant case instituted otherwise than on a police report, after the accused appears in court. The section enjoins the court to hear the complainant and take all such evidence as may be produced) in support of the prosecution. Section 253 says that if upon taking all the evidence referred to in Sec, 252, and making such examination, if any, of the accused, the Magistrate finds that no case is made out, he can discharge the accused. Them follows subset. (2). If reads as follows:-
(2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any privacies stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless.
So Sub-section (2) enables the court in. a proper case to discharge the accused at any previous stage of the case if the court considers the charge to be groundless. But this provision does not clothe the Magistrate with an arbitrary power of discharge. There must be ground or material on record to come to the conclusion that no offence is made out.
3. Decisions say that the Magistrate can discharge-the accused at any stage, even before recording any even dance, if he is of opinion that the charge is groundless. Reference may be made to the decision in Chamarbaugwallai v. Ramchandra Rao (1957) 2 Andh WR 368. The head note reads:
The words 'at any stage' occurring in Section 253 (If of the Criminal Procedure Code have a particular significance. Any bar in the way of a Magistrate, discharging an accused before the whole evidence is placed before him, is removed by Section 253(2) of the Code. The Criminal Procedure Code empowers the Magistrate to dismiss a complaint as being groundless and discharge the accused at any stage. The only essential for such an order his that he should record his reasons for doing so.
It is abundantly, clear that where allegations made by a complainant, taken at their face value and left unrebutted would constitute at best a ground for a civil suit, no criminal court would go on with the case but would leave the matter to be agitated in a civil court.
4. So the Magistrate may in suitable cases come to the conclusion that the charge is groundless even before he has heard the complainant under Sec, 252. Such a case might well be one in which the Magistrate In issuing the process under Section 204, Cr.P.C. mistakenly believed that an offence has bean disclose by the complaint and on the matter being brought to his notice when the case comes up for hearing, he sees his error end decides that, in fact, even if the allegations in the complaint am true, no criminal offence is disclosed or that sanction, to prosecute is 'necessary to take cognizance of the offence which had in fact not been obtained. But where however, as in this case, the complaint does in fact disclose a prima facie case, the Magistrate cannot hold that the charge is groundless until the complainant has been heard. In such a case, if on the admission if the complainant when examined under Section 252, it is seen that no criminal offence, has been disclosed the Magistrate would bal at liberty to discharge the accused under Section 253(2) without calling upon the complainant to examine the rest of his witnesses. In the case in Shiv Datta v. Sood AIR 1940 LAN 40, His Lordship of the Lahore High Court held:
If the admissions of the complainant under examination under Section 252, make it clear not only that the facts set forth in the accuser's petition are correct but anise that, on the basis of those facts admitted by the complainant, no criminal offence has been disclosed, he is naturally at liberty to discharge the accused under Section 253(2) without calling upon the complainant to produce the rest of his evidence.
Where a complaint prima facie discloses an offence, the Magistrate cannot hold the charge to be groundless unless he knows what is the sort of evidence that is going to be adduclub by the complainant and his witnesses. He can judiciously come to such a conclusion only after he has ascertained from the complainant what is the nature of evidence he proposes to adduce. So the Magistrate cannot discharge the accused under Section 253(2) for 'the simple reason that the complainant was absent on the date of hearing (vide the decision in Uttamrao Shri-Pat Asm Han manta AIR 1948 Nag 341).
5. The next question is whether a further inquiry is to be ordered In this case. under Section 259 Cr. P. C where the complainant has not appeared and the offence is one which may be lawfully compounded or is not a cognizable offence, the Magistrate can Use his discretion and in a proper case, discharge the accused. In this instant case, the charge was under Section 500 I.P.C. which is a non-cognizable offence and is one compoundable with the permission of the court and the Magistrate could justifiably have dismissed the complaint under Section 259 Cr.P.C. I do not, therefore, think it necessary in the interests of justice to set aside the order of discharge and order further inquiry into the matter. This will not prevent the complainant if so advised, to file a fresh complaint.