The Magistrate's discretion to discharge the accused under section 249 of the Code of Criminal Procedure, 1973, is a judicious discretion, and the Magistrate must consider all the relevant factors, including the gravity of the offence, before exercising this discretion.

Headnote:
CRIMINAL PROCEDURE CODE, 1973 - SECTION 249 - DISCHARGE OF ACCUSED - DISCRETION OF MAGISTRATE - JUDICIOUS EXERCISE - FACTORS TO BE CONSIDERED - GRAVITY OF OFFENCE - CIRCUMSTANCES SUPPORTING COMPLAINANT'S CASE - PROCEDURE FOR TRIAL OF SUMMONS CASE - RE-HEARING AS WARRANT CASE - SECTION 259 - INTERPRETATION.
Fact of the Case:

The complainant alleged that the opponent forged and fraudulently got a sale deed registered, causing wrongful loss to her and wrongful gain to himself. The opponents were charged with offences under sections 423 and 465 of the Indian Penal Code. The Magistrate discharged the accused under section 249 of the Code of Criminal Procedure, 1973, on the ground that the complainant's husband, who filed a pursis informing about her death, did not express his intention to proceed with the case.
Finding of the Court:

The High Court held that the Magistrate's order of discharge was improper. The Court found that there were circumstances supporting the complainant's case that the opponent had forged a document, and that the offences were serious. The Court also noted that the Magistrate had not exercised his discretion judiciously, as he had not considered all the relevant factors, including the gravity of the offence.
Issues: 1. Whether the Magistrate was right in discharging the accused under section 249 of the Code of Criminal Procedure, 1973? 2. Whether the offences could be tried as a summons case, and if so, whether the Magistrate's order could only be one of acquittal and not of discharge?
Ratio Decidendi: 1. The discretion granted by section 249 of the Code is a judicious discretion. The Magistrate is not to make an order of discharge automatically in case of absence of the complainant. He has to take into consideration the facts and circumstances governing the case. 2. Section 259 of the Code empowers the Magistrate to resort to the procedure of a warrant case, in the course of a trial of the summons case, when, according to him, in the interest of justice the offence should be tried in accordance with the procedure for the trial of warrant cases.
Final Decision: The High Court allowed the revision application, set aside the Magistrate's order discharging the accused, and sent the case back for trial according to law.

JUDGMENT-This revision application is directed against an order dated 23rd December 1976 passed by the Judicial Magistrate, First Class, Hinganghat in Criminal Case No. 566 of 1975, who dismissed the complaint filed by the applicant's wife, deceased Mirabai, and discharged the opponents Nos. 1 to 3 of the offences under sections 423 and 465 of the Indian Penal Code. This discharge purports to be under section 249 of the Code of Criminal Procedure (New).

2. The case of deceased Mirabai, the original complainant, against the opponents Nos. 1 to 3 was that opponent No.1 Eknath was her tenant, that he had fallen into arrears of rent and, therefore, she served him with a notice through her advocate on 19th November 1974 to pay the arrears of rent and vacate the house. Opponent No. 1, though he received a notice, did not comply with it. Instead he started saying that he had purchased the house from the complainant. When the complainant heard about it she became alarmed and made enquiries through her husband who obtained a photo copy of the document purported to be a sale-deed alleged to have been executed by her in favour of the opponent No. 1 sometime in 1972. This, according to the complainant, gave her a shock because she had not executed any such document in favour of opponent No.1. She, therefore, reported the matter both to the police and the District Registrar. However, as the matter was getting delayed at their hands she filed a complaint in the Court. According to the complainant, she never sold the said house to opponent No.1 and never put her thumb impression on any document before the Sub· Registrar, Hinganghat. The case of the complainant is that opponent No.1 forged and fraudulently got the document registered causing thereby a huge wrongful loss to the complainant and wrongful gain to himself. The opponents Nos. 2 and 3, according to the complainant, were the witnesses· to the said document and hence they have abetted the offences and are liable to be punished for abetment of the offences under sections 423 and 465 of the Indian Penal Code. On these allegations the complaint was filed by the complainant in the Court of the learned Judicial Magistrate, First Class, Hinganghat.

3. It may be noted that under the provisions of the amended Criminal Procedure Code, 1973, hereinafter called the new Code, both the offences being punishable with imprisonment for two years can be tried with the procedure prescribed for summons cases. However, it appears that the learned Magistrate decided to try the case as a warrant case. This is clear from the fact that he fixed the dates of hearing for recording evidence before the charge. There is no question of framing a charge in a summons case and, therefore, it appears that the Magistrate decided to try the case as a warrant case. Section 259 of the new Code permits the Magistrate to try offences in accordance with the procedure prescribed for the trial of warrant cases though the offences could be tried with procedure prescribed for a summons case. I shall revert to the provisions of this section a little later. For the present it is sufficient to state that the Magistrate decided to try the case as a warrant case and when the present applicant, the husband of the original complainant Mirabai, filed a pursis before the learned Magistrate on 23-12-1976 informing the learned Magistrate that the complainant had died on 16-12-1976, he passed the following order:

"Ganesh Dangre, the husband of the complainant is present. He filed a pursis that the complainant Mirabai died on 16-12-1976. Relying upon his pursis, as the complainant is absent due to her death. The complaint is dismissed in default and the accused are discharged under section 249, Criminal Procedure Code.”

That the accused were discharged under section 249 of the Code of Criminal Procedure also shows that the Magistrate proceeded to try the case as a warrant case.

4. Mr. Lambat, the learned counsel for the applicant, submitted

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