The Magistrate can discharge the accused at any stage if the charge is groundless, but must have grounds or material on record to come to this conclusion. The complainant must be heard before concluding the charge to be groundless. The Magistrate has discretion to order further inquiry in certain cases.

1. The complainant in Calendar Case 126 of 1961 has filed this revision petition to quash the order of the District Magistrate of Quilon discharging the accused under S.253 (2), Cr. P. C. The complaint was for an offence of defamation under S.500 and 501 of the Penal Code, the allegation being that the accused had defamed him by publishing false imputations against him in the issue of the Malayalam paper 'Kaumudi', dated 24th September 1960. After the sworn statement was taken, the complaint was taken on file and process was issued to the accused. The case then underwent a number of adjournments as the complainant did not appear in court for his examination. Finally the case stood posted for hearing to 16th March 1962, on which date also the complainant absented himself. Witnesses were also not present. Adjournment was asked for but the learned Magistrate came to the conclusion that there was no reasonable cause for the absence of the complainant and discharged the accused under S.253 (2) on the ground that the charge levelled against the accused was groundless. It is the legality of this order that is questioned in this revision petition.

2. S.252 of the Criminal Procedure Code deals with the procedure in a warrant case instituted otherwise than on a police report, after the accused appears in court. The section enjoins the court to hear the complainant and take all such evidence as may be produced in support of the prosecution. S.253 (1) says that if upon taking all the evidence referred to in S.252, and making such examination, if any, of the accused, the Magistrate finds that no case is made out, he can discharge the accused. Then follows sub-section (2). It reads as follows:

"(2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless."

So sub-section (2) enables the court in a proper case to discharge the accused at any previous stage of the case if the court considers the charge to be groundless. But this provision does not clothe the Magistrate with an arbitrary power of discharge. There must be grounds or material on record to come to the conclusion that no offence is made out.

3. Decisions say that the Magistrate can discharge the accused at any stage, even before recording any evidence, if he is of opinion that the charge is groundless. Reference rutty be made to the decision in Chamarbaugwalla v. Ramachandra Rao (1957) II An. W. R.368. The head note reads:

"The words 'at any stage' occurring in S.253 (2) of the Criminal Procedure Code have a particular significance. Any bar in the way of a Magistrate discharging an accused before the whole evidence is placed before him, is removed by S.253 (2) of the Code. The Criminal Procedure Code empowers the Magistrate to dismiss a complaint as being groundless and discharge the accused at any stage. The only essential for such an order is that he should record his reasons for doing so.

It is abundantly clear that where allegations made by a complainant, taken at their face value and left unrebutted would constitute at best a ground for a civil suit, no criminal court would go on with the case but would leave the matter to be agitated in a civil court."

4. So the Magistrate may in suitable cases come to the conclusion that the charge is groundless even before he has heard the complainant under S.252. Such a case might well be one in which the Magistrate in issuing the process under S.204, Cr. P. C. mistakenly believed that an offence has been disclosed by the complaint and on the matter being brought to his notice when the case comes up for hearing, he sees his error and decides that, in fact, even if the allegations in the complaint are true, no criminal offence is disclosed or that sanction to prosecute is necessary to take cognisance of the offence which had in fact not been obtained. But where however, as in