1. On a private complaint, the petitioner was prosecuted for cheating, an offence punishable under Section 420, Penal Code. The prosecution witnesses were examined and when the case was posted for hearing, the complainant was absent and the trial Magistrate discharged the accused under Section 259, Criminal P. C. In revision the Additional District Magistrate set aside the order of discharge on the ground that though the offence may be lawfully compounded, still as, the offence required permission of the Court for compounding (vide Section 345, Criminal P. C.) and as such permission was not granted, it was not open to the Magistrate to discharge this petitioner.
2. The Additional District Magistrate is wrong in thinking that in cases where offences may be lawfully compounded, the accused cannot be discharged under Section 259, Criminal P. C, without giving permission for compounding. What the section says is that in case, where the offence may be lawfully compounded, the Magistrate may act in the manner mentioned in Section 259. The offence under Section 420, Penal Code is one which under Section 345 may be compounded with the permission of the Court and, therefore, an offence which may be lawfully compounded. The Magistrate will, therefore, be well within his rights to discharge by exercising his discretion. But whether he exercised his discretion properly or not is for the revisional Court to go into and decide. As the grounds on which the further enquiry has been ordered are untenable, I set aside the order of further enquiry and direct the petition again to be heard on the question whether the trial Court has exercised its discretion properly or not.
3. The revision petition will be heard by any Magistrate other than the Additional District Magistrate who heard the case.