K.K. Narendran, J.
1. The short point that arises for consideration in this Criminal Revision is whether under no circumstance can the accused be discharged Under Section 245(1) of the Code of Criminal Procedure, 1973, for short the Code, without taking all the evidence the complainant wants to produce. The accused in C. C No. 979 of 1978 of the Judicial Magistrate of the Second Class, Manjeri are the petitioners in this Criminal Revision, The respondent filed the criminal complaint against the petitioners Under Sections 447, 342, 324, 427 read with Section 34, Penal Code. The allegations in the complaint are ; The property, 75 cents in extent, comprised in R. Sy. 94/6 in Unniyalukkaparamba in perimbalam amsom belonging to his brother was in the possession and enjpyment of the complainant. On 9-7-1978 at about 10 a. m. when P.W. 1 the complainant was manuring his cultivation the accused trespassed into the property and Wrongfully confined him. The first accused beat him with a bamboo stick on his back. The second accused lady destroyed his lady's-finger cultivation.
2. The learned Magistrate directed the complainant to produce all his witnesses, on 20-12-1978. There was no sitting on that day, and on 24-1-1979 when the case came up, the complainant and a witness present were examined. The request for adjournment of the case for the examination of two other witnesses not present on that day was rejected, the accused were questioned (they denied the entire prosecution case) and the learned Magistrate discharged the acoused Under Section 245(1) of the Code holding that 'no case against the accused has been made out whcih if un-rebutted would warrant their conviction'.
3. The respondent-complainant challenged the above order discharging the accused in revision before the Sessions Court, Manjeri. The learned Sessions Judge set aside the order of discharge and remitted the case to the trial court for trial and disposal. It is the above order of the Sessions Judge that is challenged in this Criminal Revision.
4. Sections 244 and 245 of the Code read :
244. (1) When, in any warrant-case instituted otherwise than on a police report, the accused appears Or is brought before a Magistrate, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution.
(2) The Magistrate may, on the application of the prosecution, issue a sum-mons to any of its witnesses directing him to attend or to produce any document or other thing.
245. (1) If, upon taking all the evidence referred to in Section 244, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, 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 tags of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless.
Admittedly the Order of dicharge passed by the Magistrate in this case was one Under Section 245(1) of the Cde. Under Section 245(1) the discharge has to be upon taking all the evidence referred to in Section 244. What Section 244(1) insists is that the Magistrate is to take all such evidence as may be produced in support of the prosecution. Under Section 244(2) the Magistrate may issue summons to any witness on the application1 of the prosecution. In this case, the complainant was directed to produce all his witnesses. Only one witness was present. The complainant and that witness were examined. According to the Magistrate, on the oral and documentary evidence produced, no case against the accused was made out which, if unrebutted, would warrant his conviction and hence the accused were discharged. If in a case the court directs the complainant to produce all his witnesses and on the evidence he adduces, there is not even the ghost of a chance of conviction of the accused, the Magistrate has the discretion Under Section 245(1) to discharge the accused without affording a further opportunity to the complainant to summon witnesses he could not produce. Under Section 244(1) the Magistrate need take only all evidence as may be produced. What is insisted by Section 244(1) is not all evidence that the complainant wants to produce. Having dragged the accused to court by filing a complaint he cannot protract the trial by taking steps for the witnesses at his sweet will and pleasure. The indication in Section 309 is also that this should not be tolerated, The discharge is neither perverse nor illegal. It has not resulted in any miscarriages of justice also. So, no interference was called for in the revision by the Sessions Court.
5. In P. N. Gupta v. S. P. Agarwal 1961 All LJ 219 : (1982) 1 Cri LJ 801, Section 253 (1) of the 1898 Code which corresponds to Section 245(1) of the new Code came up for consideration. The learned Judge held (at p. 802 of Cri LJ) :
The learned Sessions Judge was not right in saying that the discharge was not covered by the pro-vision of Section 253(1). It is not correct that this provision can be applied only after all the evidence that the complainant intends to produce in the case has been taken; what is required for its applicability is that all the evidence that may be produced is taken. The opposite party might have intended to produce any number of witnesses but it could not be said that eo long as all those witnesses were not examined the Magistrate could not act Under Section 253(1); otherwise it would mean that the applicability of that provision would depend on the sweet will of the complainant and he can prevent its applicability simply by refusing to produce some of his witnesses. 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. What happened here is that the Magistrate took all evidence that was produced by the opposite party; no more evidence was produced before him on July 20 of 1959. Whatever evidence was produced did not make out any case against the applicants and he was bound to discharge the applicants Under Section 253(1) It is to be noted that the learned Sessions Judge himself did not find that whatever evidence was recorded did make out a case against the applicants....It was quite unnecessary for the Magistrate to go into the question why the opposite party did not produce more evidence; it was a matter solely for the opposite party to refrain, or not to refrain, from producing more evidence.
In Poulose v. Krishnankutty Menon 1973 Mad LJ (Cri) 475 it is held ;
An order of discharge can be interfered with in revision only if the order is perverse or illegal or has resulted in miscarriage of justice.In Samuel v. Ramakrishna Kurup 1975 Ker LT 244 it is held;It is not proper to discharge the accused Under Section 253(1), CrIPC without examining the witnesses for whom steps had been taken and without finding that even if they were examined the charge could not be sustained.
It is not seen from the judgment that in Samuel's case there was a direction to produce all the witnesses at the next hearing as given by the Magstrate in this case. Not only that in that case, the Magistrate did not examine all the witnesses for whom steps were taken. So, Samuel's case is distinguishable on the facts.
6. In the result, the order impugned in this Criminal Revision is set aside ad this revision is allowed. The order of discharge passed by the Magistrate will stand.