Judgment:
ORDER
A.S. Pachhapure, J.
1. The petitioner has challenged the order dated 10.7.2007 passed by the Addl. Chief Metropolitan Magistrate, Bangalore, discharging the respondents, the accused before the Trial Court under Section 249 of Cr.P.C.
2. The facts relevant far the purpose of tins revision are as under:
I will be referring to the parties as per their rank before the Trial Court for the purpose of convenience. The petitioner heron is the complainant and he filed a complaint under Section 200 Cr.P.C. against die respondents herein who are the accused before the Trial Court requesting to take action against the accused for die offence punishable under Sections 379, 405, 408 and 468 I.P.C. to deal against them in accordance wall law. After fifing the complaint the case was registered and the warrants ware issued to dm accused. They appeared before the Trial Court and after hearing die Counsel for die parties, the Trial Court passed a considered order on 2.12.06 rejecting the memo of accused No. 3 to discharge her from the case and holding that there is prima facie case against accused Nos. 1 to 3 for die offence under Sections 381, 408, 465 r/w Section 34 IPC. Hence the Trial Court directed to frame additional charge against the accused for the said offence. It is thereafter the matter was post-poned for framing charge against the accused on many occasions and on 9.7.03 accused Nos. 1 to 3 were present before the Trial Court. The complaint was pending since long time for leading evidence alter framing the charge. The Court ordered that the 'B' report filed by the Police is accepted and respondents 1 to 3 were discharged under Section 249 Cr.P.C. Aggrieved by this order, the complainant has approached this Court in revision.
3. I have heard the learned Counsel for both the parties. The points that arise for my consideration are:
1. Whether the order of the Trial Court dated 9.7.07 discharging the accused Nos. 1 to 3 Wider Section 249 of Cr.P.C. is illegal and perverse?
2. What order?
It is the contention of the learned Counsel for the petitioner that an order to frame the charge against the accused for the offence under Sections 408 and 465 of Cr.P.C. was passed on 2.12.06 and in the circumstances he submits that the Trial Court had no jurisdiction to pass an order under Section 249 Cr.P.C. Hence he submits that the order is illegal and perverse.
4. Per contra, the learned Counsel for the respondent supported the impugned onier
5. I have heard the submissions and gone through the records produced. It is necessary to refer to the provisions of Section 249 Cr.P.C. which reads as under:
249. Absence of complainant:
When the proceedings have been instituted upon complaint, and on any day fixed for the hearing of the cast, 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.
As could be seen from the above said provision the same applies to the proceedings which have been instituted upon a complaint and on the date of hearing of the case, the complainant is absent and the offence may be lawfully compounded or is not a cognizable offence. The Magistrate has the discretion to discharge the accused at any time before the charge has been framed. So the perusal of provision indicates that the following conditions are required to be fulfilled.
1. that the proceedings must have been instituted upon a complaint;
2. the case is at the hearing stage;
3. the complainant is absent on that date;
4. the offence alleged could be lawfully compounded
5. they are not cognizable offences.
So if these requirements are proved then the Magistrate has the discretion and has the powers to discharge the accused at any time before a charge has been framed. Now to see as to whether the Trial Court has complied with all these requirements of Section 249 of Cr.P.C., if the provisions of Section 320 Cr.P.C. is looked into, it reveals that Section 408 IPC is a compoundable offence with the permission of the Court whereas Section 465 IPC is a non-compoundable offence. Furthermore, the offence under Section 408 IPC is a cognizable offence and Section 465 IPC is non-cognizable offence. So when any one of the offence for which the charge is ordered to be framed is a cognizable offence or is not compoundable then the provisions of Section 249 Cr.P.C. do sot apply and in these circumstances, the Magistrate has no discretion to pass an order of discharge under the said provision.
6. Apart from this, it is relevant to note that the complainant was present before the Court on 5.1.2007 and so also present on subsequent dates i.e., 15.3 2007, 24.4.2007, 4.6.2007 and ft is only on 9.7.2007 he was absent before the Court. But the Court has observed that the complainant was absent since long time and has railed to lead the evidence and this observation is wrong. In that view of the matter, the observation of the Trial Court regarding the absence of the complainant and the noncompliance of requirement of Section 249 of Cr.P.C. as discussed above would go to establish that the impugned older is illegal and perverse and it is not in accordance with the provisions of Section 249 of Cr.P.C. Hence I answer the point in the 'affirmative' and proceed to pass the following: