Kerala High Court: Raja Vijayaraghavan, J. set aside the order of discharge under Section 258 CrPC, passed by learned Judicial Magistrate First Class.
These revision petitions were registered against the orders of discharge passed by the learned Judicial Magistrate of First Class, Kollam invoking the powers under Section 258 of the Code of Criminal Procedure, 1973. It was brought to the notice of the Court by the Chief Judicial Magistrate Court, Kollam that the courts below had disposed of large number of cases invoking Section 258 CrPC. The cases thus disposed of included cases registered under Section 15(c) read with Section 63 of the Abkari Act, Section 27(b) of the Narcotic Drugs and Psychotropic Substances Act, Section 279 of the Penal Code, 1860 and Section 185 of the Motor Vehicles Act. As the manner of disposal of the criminal proceedings had resulted in the failure of justice, suo motu revision petitions were ordered to be registered.
In the proceeding sheet, it was mentioned that the proceedings were stopped due to failure of the prosecution to procure the accused before the court but in the appearance sheet, no mention of summons or non-bailable warrants being returned were made. The order sheet also did not indicate whether the process was actually done or not.
High Court noted that Section 258 CrPC is an enabling section which gives power to a Magistrate of the First Class or with the previous sanction of the Chief Judicial Magistrate, any other judicial Magistrate, to stop the proceedings at any stage without pronouncing a judgment by recording the reasons for the same. The provision states, “when stoppage of proceedings is made after the evidence of the principal witnesses has been recorded, the learned Magistrate shall pronounce a judgment of acquittal. In any other case, the court is empowered to release the accused and such release shall have the effect of discharge”. The provision could be applied only in unusual circumstances wherein, prima facie no case could be made out against the accused or for the reason that the prosecution was bound to fail due to a technical error.
The reason that the accused had absconded or that despite the initiation of coercive proceedings, his presence could not be secured was held to be not enough to invoke Section 258 of the CrPC. It was evident from the proceedings that not enough efforts were made to obtain the presence of the accused. Thus, it was held that the learned magistrate had exceeded his power in invoking Section 258 CrPC and hence the order given by the learned Magistrate was set aside and directions were given to take back the cases on file and proceed with the same in accordance with the law.[Suo Motu v. State of Kerala, 2019 SCC OnLine Ker 2239, decided on 20-05-2019]