Sundar Das Loghani Vs Fardun Rustom Irani

Henderson, J.@mdashThis is a rule calling upon the Chief Presidency Magistrate, Calcutta, and the opposite party to show cause why an order of discharge passed u/s 253, Sub-section (2), Criminal P.C., should not be set aside. The petitioner made a complaint on 17th October last against the opposite party to the effect that he had committed an offence punishable u/s 420, Penal Code. The Magistrate examined the petitioner upon oath and then directed that a warrant should issue for the arrest of the opposite party. The opposite party duly appeared on 26th October and 28th October was fixed for the hearing. On that day the Magistrate heard both sides and examined some documents; but he did not take the evidence of the petitioner or any of his witnesses. The Magistrate-reached the conclusion that the petitioner had deliberately suppressed several facts in his petition of complaint and that the complaint was a thoroughly dishonest one. He accordingly discharged the opposite-party. The petitioner then obtained this rule on the ground that the Magistrate''s order was made without jurisdiction. In support of the rule Mr. Basu pointed out that the procedure laid down in Section 252 of the Code had not been followed. He accordingly contended that the Magistrate''s order was without jurisdiction, inasmuch as Sections 252 and 253 are both self-contained.

2. I am bound to say that on this view I should not be able to attach any meaning to Sub-section (2) of Section 253. Section 252 is not concerned with an order of discharge. The only bar in the Magistrate''s way was Sub-section (1) of Section 253. Sub-section (2) removes this bar. Furthermore, the orders "at any previous stage of the case" are perfectly clear. It is only reasonable that an accused person should be allowed to show at any stage of the proceedings that there is no case against him; for example, he might show that there was something in the nature of a want of sanction which would render the proceedings invalid; in such a case it would be clearly waste of time to examine the complainant''s witnesses. This view finds support in the decision of the case in Fazlar Rahaman and Others Vs. Emperor, . We respectfully agree with the observations of Suhrawardy J. in that case. Mr. Basu contended that that learned Judge gave a contradictory decision in Mukunda Patre v. Purusattam Shah A.I.R.(1929) Ca 479. Though there is one passage in the actual judgment which would support this view, we are satisfied that the judgment proceeded upon other grounds. The rule was not opposed and in showing cause the Magistrate admitted that he could not defend his proceedings. The point at issue in this rule was not even considered, and the grounds taken for the decision were that the reasons given for the order of discharge were quite inadequate. We can find nothing here in conflict with the views laid down by that learned Judge in the case to which I have already referred to. The result is that this rule must be discharged.

Bartley, J.

3. I agree.