C.B. Capoor, J.C.
1. This reference has been made by the learned Sessions Judge Mahasu recommending that the order made by the learned Magistrate Second Class Kotkhai discharging the respondentsof an offence under Section 448 read with Section 109 of I. P. C. be vacated.
2. A complaint had been filed against respondents by Shankar Dass for an offence under Section 448 read with Section 109 of I. P. C. in the Court of Magistrate Second Class Kotkhai. On 5-4-1962 the complainant was absent and on that ground the learned Magistrate discharged the respondents in exercise of the powers conferred by Section 259 of Cr. P. C. An application in revision against thatorder was filed before the learned Sessions Judge on the grounds that the order of discharge was illegal and the complainant was present outside the Court room throughout the day but the case was not called on for hearing. While the Sessions Judge did not accept the complainant's version as to his being present he was of the opinion that as the offence with which the respondents were chargeed was a cognizable one the provisions of Section 259 of Cr. P. C. were not attracted and accordingly he submitted the reference under consideration. Section 259 of Cr. P. C. reads as below :
'When the proceedings have been instituted upon complaint, and upon any day fixed for the hearing of the case the complainant is absent, and the offence may be lawfully compounded, or is not a cognizable offence, the Magistrate may, in his discretion, notwithstanding anything hereinbefore contained, at any time before the charge has been framed, discharge the accused'.
2a. It will have been noticed that the clauses 'and the offence may be lawfully compounded'and 'is not a cognizable offence' are joined by the disjunctive 'or'. It is an elementary rule of interpretation that when two alternative provisions are cast in positive form and are separated by a disjunctive conjunction full effect must normally be given to both of them. A plain readingof the section, therefore, abundantly indicates that a Magistrate has the power to discharge an accused of an offence which is either compoundable or is a non-cognizable one. No difficulty would have arisen in accepting the aforesaid interpretation if compoundable and non-cognizable offences had been mutually exclusive. Some of the cognizable offences, like the offence under Section 448 of I. P. C. are, however, compoundable and the question arises as to whether a Magistrate has the power todischarge an accused of such offences. The contention is that he will not have such a power on account of the offence being a cognizable one. The aforesaid section was amended by the Amendment Act of 1923 and the words 'or is not a cognizable offence' were added after the words 'may lawfully be compounded' and prior to the words 'the Magistrate may'. I have not been able to lay my hands on the Cr. P. C. Amendment Bill 1923. The report of the Select Committee on theaforesaid Bill alongwith the notes on clauses find place in Sohoni's Code of Criminal Procedure Thirteenth Edition, 1931. The note on Clause 71 reads as below:
'The amendment proposed by the Bill would give the Magistrate discretion to discharge the ac-cused when the complainant was absent in any case instituted upon complaint. We are inclined to think that this went too far, and we think it is sufficient to extend the application of the section to cases of non-cognizable offences'.
3. It appears from the aforesaid clause that the Bill as introduced in the Assembly provided that the Magistrate should have the power to discharge the accused in any case instituted upon complaint. Prior to the introduction of the Bill the power was exercisable in cases dealing with offences that could be lawfully compounded. The intention underlying the Bill was to widen the scope of Section 259. The Select Committee, however, thought that it would not be desirable to widen the scope of the section to the extent indicated by the Amendment Bill and that it would be sufficient to extend the application of the section to pases of non-cognizable offences. It would thus appear that the Select Committee did not intend to curtail the scope of the section as it stood prior to 1923 and what it proposed was to extend ita scope by making the section applicable also to all non-cognizable offences and it, therefore, proposed to add the words 'or is not a cognizable offence' after the words 'may be lawfully compounded'.
4. The aforesaid intention of the Legislature could have been more precisely expressed by adding the words 'which is cognizable and' prior to the words 'may be lawfully compounded' but the language in which the section now stands also expresses the intent of the Legislature unambiguously. If the intent of the Legislature had been that the power conferred by the section should be with reference to an offence which is both compoundable and non-cognizable it would have used conjunction 'and' or 'but' instead of the conjunction 'or' between the expression 'and the offence may be lawfully compounded and 'is not a cognizable offence'. If, however, the intent of the Legislature had been, as according to the learned counsel for the petitioner it is, that the power conferred by the section can be exercised in respect of either all non-cognizable offences or such of the compoundable offences as were not cognizable its purpose would have been served by saying 'and the offence is not a cognizable one' instead of the expression 'and the offence may be lawfully compounded or is not a cognizable offence'. It is significant that the scope of the section would be curtailed instead of being widened if it is held that the power conferred by the section is exercisable either when an offence is both compoundable and a non-cognizable one or is a non-cognizable one for prior to its amendment in 1923 it governed all compoundable offences whether; cognizable or not.
5. A statute is the will of the Legislature and the fundamental rule of interpretation, to which all others are subordinate, is that a statute is to be expounded 'according to the intent of them that made it' and if the words of the statute are in themselves precise and unambiguous no more is necessary than to expound those words in their natural and ordinary sense, the words themselves best declaring the intention of the legislature. Income Tax Special Purposes Commissioners v. Pamsel, 1891 AC 531 (534).
6. If the context so requires the conjunction 'or' is sometimes interpreted as 'and' and vice versa. The invocation of that rule is, however, not indicated in interpreting Section 259 as full effect to the alternative provisions under consideration can be given. A non-cognizable offence is not a species of a compoundable offence and the rule of ejusdem generis is also not applicable.
7. The interpretation of the section which, in my opinion, is both obvious and in conformity with the intent of the Legislature is that the power conferred by it may be exercised with reference to all compoundable offences whether cognizable or not and all non-cognizable offences whether compoundable or not.
8. The learned counsel for the parties stated at the Bar that there was no direct authority on the question under consideration. I have, however, been able to lay my hands on a Nagpur case Uttamrao Shripat v. Asru Hanwanta, AIR 1948 Nag 341 in which a view contrary to the one that has been taken by me was expressed. It was observed in that case that in warrant cases Section 259 applies and the power to discharge the accused in the absence of the complainant is only given in compoundable and non-cognizable cases. There is, however, no discussion of the question and with great respect to the learned Judge his view does not commend to me.
The case of C. Narayana v. C. Rudrayya, AIR 1950 Mad 183 impliedly lends support to the view that I have taken. That case related to an offence under Section 420 of I. P. C. which is a cognizable offence and is compoundable with the permission of the Court. The Magistrate had in that case discharged the accused on account of the absence of the complainant and it was held that the Magistrate was well within his right in making the order of discharge. Thus differing from the conclusion reached by the learned Sessions Judge on the question of law I hold that the learned Magistrate Second Class, Kotkhai had the power to record an order of discharge.
9. I am, however, of the opinion that the learned Magistrate did not exercise a sound discretion in discharging the respondents. It appears that the complainant led evidence on 29-9-1961 and closed his case. Thereafter it remained for the learned Magistrate to examine the accused if he so liked and to consider as to whether a charge should be framed against the respondents or not and for that purpose the presence of the complainant was not necessary on the next date. It will have been noticed that the words 'in his discretion' find place in the section and those words indicate that in recording an order of discharge the Magistrate shall exercise his discretion and not make an order of discharge automatically. A discretion is not to be exercised arbitrarily. The function of a Magistrate is to advance and not hamper the cause of justice. He fails in his duty it the absence of the complainant is seized as an opportunity just to get rid of the case.
10. I, therefore, accept the reference made by the learned Sessions Judge though on a ground different from the one assigned by him and set aside the order of discharge and remand the case to the learned Magistrate Second Class, Kotkhai, with the direction that he should proceed with the case in accordance with law.