Saturday 12 January 2013

Magistrate can not close the case unders.258 of CR P C without giving opportunity to prosecution to adduce evidence

 This section, undoubtedly is worded in a wide language but provisions of this section applies only in special or un-usual circumstances, which make it difficult or impossible for the Magistrate to proceed with the case by adopting the normal procedure under the Code. In the present case, the learned trial Magistrate merely considered the allegations in the police report and did not give opportunity to prosecution to adduce evidence of witnesses. Section 258 of the Code which empowers to stop the proceedings in certain cases is intended to meet with certain situations, where the presence of accused persons cannot be secured or presence of any important witness cannot be secured by the prosecution, which is necessary for the trial of the case. Therefore, where the Magistrate does not find it possible to dispose of the matter by adopting normal procedure contemplated by the Code for one reason or other as hereinabove stated, in such situation it would be open to the Magistrate to stop further proceedings of the case. Section 258 of the Code can be resorted to where the special or un-usual circumstances exist, such as non-appearance of the accused before the Court for considerable time or of the important witness of the prosecution, which make it difficult or impossible for the Magistrate to proceed with the case in normal way. Therefore, in such situation, where the Magistrate finds it difficult to decide the case on merit, without any hindrance, in the normal manner, as per procedure under the Code, the provisions of section 258 of the Code can be resorted to. The learned Magistrate in the given case, seems to have exceeded his powers in invoking provisions of section 258 of the Code and that too without giving an opportunity to the prosecution to adduce evidence in support of the charge. Merely because, there is no averment in the complaint that the dash given by the respondent No. 2 was rash and negligent act of his driving, it does not follow that ingredients of the offences alleged were not proved. It is a matter of inference. The approach of the learned Magistrate, therefore, to exercise powers under section 258 of the Code was indeed unwarranted. It is obligatory on the part of the Magistrate to adopt the normal procedure as contemplated under the Code for trial of such offences. The impugned order, therefore, is illegal and requires to be quashed and set aside.

Bombay High Court
Mulchand Motilal Raka vs The State Of Maharashtra And Anr. on 6 September, 1995
Equivalent citations: 1996 (1) BomCR 316

Bench: A Mane



1. The petitioner challenges the legality, propriety and correctness of the order made on 3-5-1991 by the learned Judicial Magistrate (First Class) Jamner, dis-charging the respondent No. 2-accused of the offences punishable under sections 279 and 337 of the Indian Penal Code by invoking provisions of section 258 of the Code of Criminal Procedure (for short, the Code).
2. The petitioner filed his complaint with Jamner Police and on basis of which Crime at Cr. No. 81 of 1991 was registered for the aforesaid offences. It was alleged that on 22-3-1991 at about 8.15 p.m. the petitioner with his servant, was coming back to his home after closing the shop. While they were walking on road, one jeep bearing Registration No. MPO/978/5860 dashed them. The jeep was driven by the respondent No. 2. He did not stop the jeep but drove it in fast speed towards petrol pump road. The petitioner got injured. He was treated in the private hospital. On basis of the complaint of the petitioner, the police filed Summary Criminal Case No. 179 of 1991.
3. The respondent No. 2 filed his application under section 258 of the Code and sought his discharge on the ground that no offence under sections 279 and 337 of the Indian Penal Code was made out, as according to him, it was a mere accident due to failure of breaks.
4. The material question which requires consideration is whether the learned Magistrate was correct in his approach to exercise his powers under section 258 of the Code, in discharging the accused without recording the evidence offered by the prosecution.
5. Shri Deshmukh, learned Counsel for the petitioner submits that the learned trial Magistrate has wrongly applied the provisions of section 258 of the Code because the stoppage of the case as contemplated by this section can be ordered only in exceptional circumstances. It is submitted that in the facts and circumstances of the present case, the proper course for the learned trial Magistrate was to adopt the normal procedure and to pass appropriate order only after recording the evidence offered by the prosecution.
6. There appears substance in the submission of learned Counsel for the petitioner. Section 258 of the Code inter alia provides that, in any summons case instituted otherwise than upon complaint, a Magistrate of the first class or, with the previous sanction of the Chief Judicial Magistrate, any other Judicial Magistrate, may, for reasons to be recorded by him, stop the proceedings at any stage without pronouncing any judgment and where such stoppage of proceedings is made after the evidence of principal witnesses has been recorded, pronounce a judgment of acquittal, and in any other case, release the accused, and such release shall have the effect of discharge.
7. This section, undoubtedly is worded in a wide language but provisions of this section applies only in special or un-usual circumstances, which make it difficult or impossible for the Magistrate to proceed with the case by adopting the normal procedure under the Code. In the present case, the learned trial Magistrate merely considered the allegations in the police report and did not give opportunity to prosecution to adduce evidence of witnesses. Section 258 of the Code which empowers to stop the proceedings in certain cases is intended to meet with certain situations, where the presence of accused persons cannot be secured or presence of any important witness cannot be secured by the prosecution, which is necessary for the trial of the case. Therefore, where the Magistrate does not find it possible to dispose of the matter by adopting normal procedure contemplated by the Code for one reason or other as hereinabove stated, in such situation it would be open to the Magistrate to stop further proceedings of the case. Section 258 of the Code can be resorted to where the special or un-usual circumstances exist, such as non-appearance of the accused before the Court for considerable time or of the important witness of the prosecution, which make it difficult or impossible for the Magistrate to proceed with the case in normal way. Therefore, in such situation, where the Magistrate finds it difficult to decide the case on merit, without any hindrance, in the normal manner, as per procedure under the Code, the provisions of section 258 of the Code can be resorted to. The learned Magistrate in the given case, seems to have exceeded his powers in invoking provisions of section 258 of the Code and that too without giving an opportunity to the prosecution to adduce evidence in support of the charge. Merely because, there is no averment in the complaint that the dash given by the respondent No. 2 was rash and negligent act of his driving, it does not follow that ingredients of the offences alleged were not proved. It is a matter of inference. The approach of the learned Magistrate, therefore, to exercise powers under section 258 of the Code was indeed unwarranted. It is obligatory on the part of the Magistrate to adopt the normal procedure as contemplated under the Code for trial of such offences. The impugned order, therefore, is illegal and requires to be quashed and set aside.
8. Rule is, therefore, made absolute. The impugned order is quashed and set aside. The case is restored to the file. The Magistrate is directed to dispose of the case in accordance with law. Record and proceedings, if received, be sent to the lower Court immediately.
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