Lal Chand Vs. Chuhar Mal

criminal procedure code (old) - section 259 and penal code--sections 419 & 420 - discharge--offences cognizable and not compoundable--hearing fixed for summoning of two witnesses--held, order of discharge passed by magistrate on ground of absence of complainant is clearly illegal & improper-sessions judge rightly set it aside.;revision dismissed - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years - it is with the enactment of the juvenile justice act, 2000, that in section 2(k) a juvenile or child was defined to mean a child who had not completed eighteen years of a ge which was given prospective prospect - appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the juvenile justice act, 2000, came into force - juvenile act, of 2000 has been given retrospective effect by rule 12 of juvenile justice rule, 2007 - as such, accused has to be treated as juvenile under the said act. - 1 is clearly illegal and improper in the circumstances of the case and the learned additional sessions judge no......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.