@JUDGMENTTAG-ORDER
Waller, J.@mdashNo doubt, the language used in the three parts of Section 253, Criminal Procedure Code, is different, but it is, I think,
impossible to lay down any general principle Or to attempt to define what precisely is meant by the word ""groundless."" Probably, as good a
definition as any, is that the evidence must be such that no conviction could be rested on it. It obviously does not mean that the evidence discloses
no offence whatever.
2. In this particular case, I see no reason to dissent from the view taken by the Courts below. It is most unlikely that any Court would have
convicted after hearing the evidence of the only witness examined. The petition is dismissed.
Krishnan Pandalai, J.
3. This is a petition to revise the order of discharge passed by the Second Class Magistrate of Tuticorin u/s 253(2) of the Criminal Procedure
Code. The complaint was brought by the father-in-law of one Sankaragomati Chettiar who had recently died against the cousins of the deceased
and alleged that the daughter of the complainant (widow of the deceased)entrusted her own and her children''s jewels worth about Rs. 4,000 and
her husband''s account books to the accused soon after the 15th day ceremony, for the purpose of selling the jewels and realising the outstanding
and investing the proceeds for the benefit of the widow and her children and that when the accused were later questioned they denied the receipt
of the jewels and accounts. The complainant stated that he presented the complaint as per his daughter''s instructions and charged that the accused
committed an offence u/s 403 of the Indian Penal Code.. The Magistrate having summoned the accused, the complainant was examined and cross-
examined at length on 21st December, 1927 and 11th January, 1928. The complainant had been previously informed that his daughter, a resident
of Tuticorin and the real complainant should be brought to Court to be examined on the 11th January. On that day she was absent. The
complainant asked for a commission to examine her which was refused, the Magistrate remarking that the application was not bona fide. Then the
complainant asked for an adjournment which was also refused. The defence, as appeared from the cross-examination of the complainant, was that
the deceased Sankaragomati Chettiar had left a will under which first accused was executor and that he was in possession of the estate as such and
not under any entrustment by the widow and that the complainant, an impecunious person, was using his daughter or her name as a tool to coerce
the accused to part with the estate.
4. The Magistrate came to the conclusion that the story told by the complainant was highly improbable, that at the best, the dispute appeared to be
one of a civil nature to settle which the complaint was brought as a criminal case, that examination of further witnesses will not in these
circumstances be of any use and therefore he discharged the accused. The District Magistrate to whom the complainant preferred a revision
petition upheld the Sub-Magistrate''s order and dismissed the petition being of opinion that it was frivolous. The learned Advocate for the petitioner
has urged before us that the Sub-Magistrate had no power to discharge u/s 253(2) before examining all the complainant''s witnesses and that he
could not consider the charge to be groundless before he had heard all the evidence. I wish to lay down no general rule as to whether a Magistrate
should in practice examine all witnesses available or how many of them, before acting u/s 253(2). That depends entirely on the circumstances of
each case for which no general rule can be laid down. But on the question of legal competence, there is no warrant for saying that Magistrates are
bound to examine all witnesses that may be offered or available before taking action under that sub-section. The words of Sub-Sections (1) and
(2) of Section 253 are as plain as any words can be on that point. The first sub-section states that if on taking all the evidence referred to in
Section 252 and if necessary examining the accused, no case is made out against the accused, the Magistrate shall discharge him. The second sub-
section says that nothing in that section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case,
that is, before all the evidence referred to in Section 252 has been taken, if for reasons to be recorded the Magistrate considers the charge to be
groundless. Authority for supporting such a plain statutory provision would be needless. But authority there is: see Narasamma v. Venkatarayudu
(1911) 1 M.W.N. 149 and Kunj Behari Lal v. Emperor (1911) 1 M.W.N. 149. The amount of evidence which would enable a Magistrate to say
that a particular charge was groundless is so entirely dependent on circumstances that no general rule or direction except that he is required to
arrive at his conclusion judicially and not capriciously is likely to be of any use. If, acting ""judicially, a Magistrate has come to the conclusion on
grounds to be recorded, that the charge must fail either because the allegations are false or because they disclose a dispute of a civil nature which is
distorted into a criminal case or for any other reason, then there is nothing to prevent him from discharging the accused before all the complainant''s
witnesses have been examined. It follows that the action taken by the Sub-Magistrate was fully within his competence. In revision we are not
accustomed to enquire into the merits to see whether the conclusions of the Lower Court are correct on the facts. But I see nothing in the facts
which would enable me to say that the order of the Magistrate was not a proper and judicial order. The petition is dismissed.
