IMPORTANT POINTS
1. Jurisdiction u/s 219 of Code of Criminal Procedure in passing order of discharge is to be judicially exercised.
2. The revisional jurisdiction u/s 397 of the Code of Criminal Procedure is not only limited in scope but is also discretionary. Court should step in only to interfere in exceptional cases of flagrant miscarriage of justice.

JUDGMENT

K.L. Shrivastava, J. -This is an application for grant of special leave to appeal against the order dated 12.12.85 passed by the Judicial Magistrate First Class, Susner in Criminal Case No. 27 of 1982.

2. Circumstances giving rise to the application are these. On 3.10.81 the petitioner Ramchandra filed a criminal complaint against the non-applicant in the Court of Judicial Magistrate First Class, Susner. On its basis a case under Sections 451 and 323 of the I.P.C. was registered. On 12.12.85 the learned Magistrate passed the impugned order in these terms:

^^Qfj;knhvuq0AQfj;knhvf/koDrkJh,e0,y0tSumi0AQfj;knh,M0us,dvkosnuQfj;kndh
vkt dh gkftjh ekQh ckcn is'k fd;kA
Qfj;knh vuqifLFkr A xokgku Hkh vuqifLFkrA
izdj.kdkQhiqjkukgSAQfj;knhdhvuqifLFkfrdkdksbZizek.k&i=kvLoLFkrkdkis'kughagSA,slh
fLFkfresaizdj.kesavkxsdk;Zokghtkjhj[kukmfprughagksxkAQyr%izdj.kQfj;knhdhvuqifLFkfresao
lknk ds vHkko esa fujLrfd;k tkrk gSA
izdj.k lekIrgksdj nkf[ky jsdkM gks A**

1. 3. The contention of the Petitioner's learned counsel in this Court is that it was the duty of the learned Magistrate to issue coercive processes against the witnesses who were absent despite service.

2. 4. The point for consideration is whether the application deserves to be allowed.

3. 5. The case in question before the trial Magistrate being one under Section 451 part-I and Section 323 IPC was not a warrant case instituted otherwise than a police report. However, as it was tried by the procedure for trial of warrant cases (vide order-sheet dt. 12.3.82) it was governed by the procedure laid down in ss. 244 to 250 of the Criminal Procedure Code, 1973 (for short 'the Code') and the impugned order dismissing the case cannot be held to be one of acquittal under Section 256 (1) ibid. Section 259 of the Code relates to conversion of summons cases into warrant cases in the Course of trial.

4. 6. A perusal of the impugned order shows that it is substantially one of discharge and not of acquittal contemplated under Section 248 of the Code. In the circumstances of the case, therefore, there can be no question of grant of special leave to appeal and the application deserves to be thrown out on this ground.

5. 7. Now the question is whether the impugned order of discharge may be interfered with treating the application as one for revision.

6. 8. An order of discharge can be passed either under Section 245 of the Code or under Section 249 ibid. The impugned order not being on the finding that no case against the non applicant has been made out or that the charge is groundless is essentially under Section 249 ibid which reads thus: "When the proceedings have been instituted upon complaint, and on any day fixed for the hearing of the case, the complainant is absent, and the offence may be lawfully compounded, or is not a cognizable offence, the Magistrate may, in his discretion, notwithstanding anything hereinbefore contained, at any time before the charge has been framed, discharge the accused."

7. 9. Offence under Section 451 of the I.P.C. is compoundable with the permission of the Court as provided u/s. 320 (2) of the Code.

8. 10. It may be stated that Court's permission is required for composition of an offence under Section 351 IPC and no such permission was granted in this case. The offence still remains compoundable and is converged under Section 249 of the Code.

11. It may also be pointed out that once the condition that the offence must be compoundable is held fulfilled, it s not necessary as a concurrent condition that it must also be non cognizable before it can e held to fall within the ambit of Section 249 of the Code. It is not necessary that the offence must be compoundable as well as non-cognizable. According to the terms of the section on fulfillment of either of the two conditions pertaining to the offence complaint is, in the exercise of judicial discretion, liable to be dismissed there-under. Thus the jurisdiction under the section may be

exercised in respect of all non-