That order was challenged in the High Court of Bombay at Nagpur and it was held that: -
"Where the Magistrate comes to the conclusion that no case, not even a prima facie case, under Section 447, I.P.C., was made out, he is perfectly justified in stopping the proceedings under Section 249, Criminal P.C. without first following the procedure under Sections 242 to 244, Criminal P.C. The words of Section 251-A (2), Criminal P.C., cannot be read into Section 249, Criminal P.C., and the Magistrate before releasing the accused under Section 249, need not hear the accused and the complainant".
It was also held that the use of the word "discharge" by the Magistrate in his order under Section 249, merely amounts to a release of the accused and stopping of the proceedings without a conviction or an acquittal. This appears to be quite a contrary view to the one taken by the Madhya Pradesh High Court in the case of 1962 (1) Cri LJ 817 (MP), referred to hereabove and relied upon by the learned Sessions Judge. To say that in every such case where the summons procedure is to be followed contemplated under Chapter XX, the case must necessarily proceed and must end in acquittal or conviction of the accused, can make Section 249 nugatory. It will be of no consequence if no such power existed in the Magistrate. There may arise cases in which on the face of it taking all the averments made in the accusation contained in the complaint may not constitute any offence at all or where any such complaint would become invalid for want of any particular formality to be gone into. There may arise cases where on account of certain technical defects in any such prosecution there would not arise any purpose for proceeding with the matter till the end. At the same time there may arise some cases in which after the evidence of the complainant is over, and which does not help his case, it may not require to call upon the accused to meet the accusation as was found in the Bombay Case and in those circumstances which can be characterised as Special or unusual which make it difficult or impossible to proceed in the normal way or that by reason of such circumstances the Court considers highly necessary to proceed further in the matter in which event it will be open to the Magistrate to exercise such powers and stop the proceedings without pronouncing any judgment either of acquittal or conviction and would be justified in releasing the accused. With respect, therefore, while I amendment unable to agree with the view taken by the High Court of Madhya Pradesh in the decision referred to hereabove, I agree with the view taken by the High Court of Bombay in the decision referred to above and at the same time observe that such powers have to be sparingly used and that too particularly in the exceptional or unusual circumstances attending the case. The order of releasing the accused, therefore, under Section 249 cannot be said to be in any way so illegal or wrong on a consideration of the effect of Section 249 of the Code.
1. The facts giving rise to this reference are very simple. During the course of investigation of Case No. 41 of 1969 of the Mandvi Police Station in respect of offences under Sections 457 and 380 of the Indian Penal Code, the P.S.I. Mandvi had gone to the village of Pipri on 17-5-69 and taken search of the house of Sanghar Ibrahim Ladha in the presence of panchas. In that search certain articles such as three aluminium wire bundles, one iron-board, one iron pointed bar, iron rod with nuts and bolts and small iron saw etc. were found. Since the accused could not give any satisfactory explanation as to how he came in possession of such articles, they came to be seized by making a panchanama in respect thereof. A complaint was filed by Mr. S.V. Tahilramani, the P.S.I. Mandvi, against the accused for an offence under Section 124 of the Bombay Police Act. 1951, in the Court of the Judicial Magistrate, First Class at Mandvi. On the date of hearing of the case viz., on 24-7-69, before recording the plea of the accused, the Court adjourned the case for hearing the Police Prosecutor on the point whether the offence was a cognizable one or a non-cognizable one. Then on the next date of hearing, after hearing the learned Police Prosecutor, he adjourned the matter for passing orders. It was, however, adjourned on that day as the papers could not be gone through by the learned Magistrate though the parties were present. It was then on 18-8-69 that the learned Magistrate passed an order whereby the accused came to be released under Section 249 of the Criminal Procedure Code. He also directed the muddamal articles to be returned to him under Section 517 of the Code. The material part of the order runs thus: -
"There is nothing in the record in evidence to show that the complaint is registered regarding the said Muddamal articles; instead taking cognizable offence the police has filed non-cognizable offence against the present accused. In view of this the accused is released u/s. 249 of the Criminal Procedure Code.
The Muddamal articles are ordered to be returned to accused Ibrahim Ladha u/s. 517 (1) of the Criminal Procedure Code".
Feeling dissatisfied with that order passed by Mr. P.N. Trivedi, Judicial Magistrate, First Class, Mandvi-Kutch. The State filed Criminal Revision Application No. 32 of 1969 in the Court of the Sessions Judge, Kutch District at Bhuj. The learned Sessions Judge found that the order of releasing the accused under Section 249 of the Criminal Procedure Code was wrong and in his view the case should have been proceeded further according to the procedure laid down in Chapter XX of the Code. In regard to the order relating to the muddamal articles, he found that the order was not wrong. In the result, he made a reference for setting aside the order passed by the learned Magistrate under Section 439 of the Criminal Procedure Code. The accused is absent and no one appears on his behalf.
2. It was, however, pointed out by Mr. Thaker, the learned Assistant Government Pleader for the State, that the order passed by the learned Sessions Judge in respect of the muddamal articles directed to be returned to the accused by the learned Magistrate is not proper. But we go to that aspect of the matter, it would be necessary to consider the effect of Section 249 of the Criminal Procedure Code. The learned Sessions Judge appears to have thought that the proper course for him was to proceed with the case and to record a finding of acquittal after taking the evidence by following a procedure laid down in Chapter XX in respect of the trial of summons cases by the Magistrates. He found support for the same from the decision in the case of State of Madhya Pradesh v. Shantilal Dayashanker, 1962 (1) Cr LJ 817 (MP), where it has been laid down that in a trial of summons cases, it is only after the procedure prescribed in Section 244 is followed and the evidence is recorded that the Magistrate can under Section 245 acquit the accused if he finds him not guilty. The directions contained in Sections 244 and 245 are mandatory and without complying with them the Magistrate has no jurisdiction to pass an order under Section 245 acquitting the accused. Reliance was, however, placed on further observations which run thus: -
"The fact that the police papers do not disclose any offence committed by the accused or that the evidence that may be produced is not likely to advance the prosecution case any further can hardly be made as a valid ground for stopping the proceedings under Section 249 without pronouncing any judgment either of acquittal or of conviction. In such a case the proper course would be to proceed with the case and to record and to record a finding of acquittal after taking the evidence".
If we peruse the provisions contained in Chapter XX which lay down the procedure in summons cases, on the accused appearing on a warrant before the Magistrate, the particulars of the offence have to be stated on him, and if the accused admits the truth of the accusation, he may be convicted. However, if he does not admit the truth of the accusation, the Magistrate has to proceed to hear the complainant and take all such evidence as may be produced by him. After taking the evidence and examining the accused, the Magistrate may either acquit or convict him. Section 247 lays down the procedure when the complainant does not appear on the day fixed for hearing and Section 248 states the circumstances in which a complaint can be withdrawn. Then comes the relevant Section 249 under which the accused has come to be released by the learned Magistrate. This Section 249 runs thus: -
"249. In any case instituted otherwise than upon complaint, a Presidency Magistrate, a Magistrate of the first class or any other Judicial Magistrate.............may for reasons to be recorded by him stop the proceedings at any stage without pronouncing any judgment either of acquittal or conviction, and may thereupon release the accused".
With this section, Chapter XX comes to a close. On a plain reading of this Section 249, it appears that in any case instituted otherwise than upon complaint, and tried under a procedure applied to summons cases, the Magistrate has been given a wide discretion, though no doubt for reasons to be recorded in writing, to stop the proceedings at any stage, and in that event he has the power and authority to release the accused without giving any judgment either of conviction or acquittal. The words "at any stage" contemplate any stage with the appearance of the accused before the Magistrate and before any order of acquittal or conviction has been passed against him by pronouncing the judgment. In other words, the discretion has been extremely wide and can well be exercised in the circumstances of the case justifying the same. In the case of Jagmal Raja v. The Crown, reported in AIR 1950 East Punj 83, it has been observed that the wording of Section 249 itself is undoubtedly very wide and can cover any set of circumstances in which a Magistrate thinks that the proceedings in a summons case ought not to be continued any longer. It has been further observed that it is however doubtful whether the section was intended to be applied in cases in which there are no special or unusual circumstances which make it difficult or impossible or even highly undesirable to proceed in the normal way under Section 244 and arrive at a finding on the guilt or innocence of the accused. We have, further been referred to a decision in the case of Marotrao Ganpatrao Jadhav v. The State, AIR 1960 Bom 481. In that case, a complaint against the accused was for an offence of criminal trespass punishable under Section 447 of the Indian Penal Code. The learned Magistrate, First Class, Amravati issued process and without following the procedure for the trial of summons cases contained in Sections 241 to 245. Criminal Procedure Code, he passed an order under Section 249, Criminal Procedure Code, holding that he did not think that any case under Section 447, Indian Penal Code, can be said to be made out even prima facie, and that in the result, he discharged him under Section 249 of the Code. The matter was taken to the Sessions Court in revision and in the view of the learned Sessions Judge, the learned Magistrate should have followed the proper procedure under Sections 242 to 244 of the Code and acquitted the accused but that he was not justified in passing an order under Section 249, Criminal Procedure Code. He, therefore, set aside the order under Section 436 of the Code and directed further enquiry in the matter. That order was challenged in the High Court of Bombay at Nagpur and it was held that: -
"Where the Magistrate comes to the conclusion that no case, not even a prima facie case, under Section 447, I.P.C., was made out, he is perfectly justified in stopping the proceedings under Section 249, Criminal P.C. without first following the procedure under Sections 242 to 244, Criminal P.C. The words of Section 251-A (2), Criminal P.C., cannot be read into Section 249, Criminal P.C., and the Magistrate before releasing the accused under Section 249, need not hear the accused and the complainant".
It was also held that the use of the word "discharge" by the Magistrate in his order under Section 249, merely amounts to a release of the accused and stopping of the proceedings without a conviction or an acquittal. This appears to be quite a contrary view to the one taken by the Madhya Pradesh High Court in the case of 1962 (1) Cri LJ 817 (MP), referred to hereabove and relied upon by the learned Sessions Judge. To say that in every such case where the summons procedure is to be followed contemplated under Chapter XX, the case must necessarily proceed and must end in acquittal or conviction of the accused, can make Section 249 nugatory. It will be of no consequence if no such power existed in the Magistrate. There may arise cases in which on the face of it taking all the averments made in the accusation contained in the complaint may not constitute any offence at all or where any such complaint would become invalid for want of any particular formality to be gone into. There may arise cases where on account of certain technical defects in any such prosecution there would not arise any purpose for proceeding with the matter till the end. At the same time there may arise some cases in which after the evidence of the complainant is over, and which does not help his case, it may not require to call upon the accused to meet the accusation as was found in the Bombay Case and in those circumstances which can be characterised as Special or unusual which make it difficult or impossible to proceed in the normal way or that by reason of such circumstances the Court considers highly necessary to proceed further in the matter in which event it will be open to the Magistrate to exercise such powers and stop the proceedings without pronouncing any judgment either of acquittal or conviction and would be justified in releasing the accused. With respect, therefore, while I amendment unable to agree with the view taken by the High Court of Madhya Pradesh in the decision referred to hereabove, I agree with the view taken by the High Court of Bombay in the decision referred to above and at the same time observe that such powers have to be sparingly used and that too particularly in the exceptional or unusual circumstances attending the case. The order of releasing the accused, therefore, under Section 249 cannot be said to be in any way so illegal or wrong on a consideration of the effect of Section 249 of the Code.
3. In the present case, however, the learned Magistrate can hardly be said to have exercised the discretion properly under Section 249 of the Criminal Procedure Code for the simple reason that he has ignored the nature of the offence said to have been committed by the accused by reading the complaint and the provision in respect of which he is sought to be prosecuted. In the view of the learned Magistrate some offence must have been registered in respect of those muddamal articles which came to be found from the possession of the accused. In other words, he thought that there must have been a complaint for an offence of theft or of receiving stolen property as a result of theft having been committed at somebody's place and such a property or a part thereof having been found from the accused. If that were really so, the prosecution of the accused would not have been under Section 124 of the Bombay Police Act but would be one under Section 379 or Section 411 of the Indian Penal Code. The offence under Section 124 of the Bombay Police Act is of a minor character inasmuch as while the property may not be strictly established as one having gone from the house of any particular person or even the property fraudulently obtained from any particular person in respect of which any complaint is lodged, it contemplates an offence in respect of any such property found from his possession where there is reason to believe the same to be stolen property or the property obtained fraudulently and that if he fails to account for such possession to the satisfaction of the Magistrate, he can be punished under Section 124 of the Bombay Police Act. The essence of the offence is the possession of any particular property in respect of which there is reason to believe the same to be stolen property or property fraudulently obtained. When these two ingredients are established, he would be required to account for such possession and if he fails to so account to the satisfaction of the Magistrate, he can well be convicted for the said offence. In Criminal Reference No. 2 of 1968 decided by this Court on 8th February 1968, it was observed that for showing that there is reason to believe a particular property to be stolen property or one fraudulently obtained, the direct evidence can hardly be had and if it were available, he would be charged for the substantive offence under the Indian Penal Code. If, however, any such evidence is available, the prosecution can certainly produce the same, but not having done so, does not entitle the Court to ignore the effect of the circumstances disclosed from the evidence adduced in the case. Those circumstances may well arise having regard to the type of a person from whom any such property is found, or about the kind and quantity of property showing unusual character thereof, or in his conduct when found with the property, in not being able to explain about the same. In such circumstances it would be a reasonable inference to be drawn from the set of circumstances established by the prosecution before holding him liable for an offence under Section 124 of the Bombay Police Act. It would not, therefore, be proper for the learned Magistrate to ignore the nature of the offence said to have been committed by the accused by reference to Section 124 and on a mere ground that no such complaint in respect of those muddamal articles was ever lodged. The learned Sessions Judge was, therefore right in holding that the learned Magistrate has failed to proceed in the matter by allowing the prosecution to examine its witnesses and summarily stopping the proceedings and releasing the accused under Section 249 of the Criminal Procedure Code. I would, therefore, accept the reference made by the learned Magistrate in that respect.
4. Once the learned Sessions Judge thought of referring this matter to this Court for quashing the order passed by the learned Magistrate, the other order passed under Section 517 of the Criminal Procedure Code would have to be automatically set aside. When the case had to be proceeded further against the accused, the property found from his possession in respect of which the offence was said to have been committed, ought to have been before the Court. It may well be that at the end of the trial. The learned Magistrate would be justified in considering as to whether the property should be confiscated to the State or be returned to the accused, whether the accused is convicted or not. That order can however, be passed after the trial is over.
5. I, therefore, accept the reference and quash the order passed by the learned Magistrate releasing the accused under Section 249 of the Criminal Procedure Code. The case shall, however, be sent to the Court of some other Magistrate than the one who passed the order for disposal in accordance with law that would be so transferred by the learned Sessions Judge as he thinks proper. I also set aside the order passed for returning the muddamal articles to the accused under Section 517 (1) of the Criminal Procedure Code. The trial Court would pass such orders as it deems proper at the end of the trial under Sec 517 of the Code.
6. Reference accepted.
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