K.D. Sharma, J.
1. Heard Mr. I.C. Maloo, learned Counsel for the petitioner & Mr. M.L. Chhangani, appearing on behalf of the non-petitioner and perused the record of the trial court. Upon perusal of the record, it has come to my notice that the learned Additional Munsiff Magistrate No. 1, Jodhpur, committed a grave error of law in discharging the accused in this case on the ground of absence of the complainant. Section 259, old Cr.P.C. applied to cases where the offeace charged was a compoundable oar or was not a cognizable offence, Where the offence was neither compoundable, nor cognizable, the provisions of Section 259, old Cr.P.C. were not attracted. In the instant case, criminal proceedings under Sections 419 and 420, IPC were instituted upon complaint against the accused non-petitioner. The offences under Sections 419 and 420, IPC were cognizable offences and were not compoundable without the permission of the court and, therefore, the learned Magistrate should have exercised his discretion judiciously and not arbitrarily, especially when the presence of the complainant was not at all necessary on May 21, 1973. for proceeding with the case, because the date was fixed for summoning his two witnesses whose summons had not been returned served or unserved on the previous date, i.e. March 28, 1973. Despite the absence of the complainant the circumstances were not such as could give rise to the inference that he did not wish to proceed with the case. Curiously enough, the learned Additional Munsiff Magistrate No. 1 did not consider this aspect of the case Hence, the order of discharge passed by the Additional Munsiff-Magistrate. No. 1 is clearly illegal and improper in the circumstances of the case and the learned Additional Sessions Judge No. 1, Jodhpur, rightly set it aside.
2. The revision-petition fried against the order of the Additional Sessions Judge No. 1, Jodhpur, setting aside the discharge has no force and is hereby dismissed. The trial court is directed to conclude the trial of this case at the earliest after giving top priority ever other eases. The record of the trial court be returned immediately.