The power to discharge an accused in the absence of the complainant under Section 259 of the CrPC extends to all compoundable offences, whether cognizable or not, and to all non-cognizable offences, whether compoundable or not.

This reference has been made by the learned Sessions Judge Mahasu recommending that the order made by the learned Magistrate Second Class Kotkhai discharging the respondents of an offence under S. 448 read with S. 109 of I. P. C. be vacated.

2. A complaint had been filed against respondents by Shankar Dass for an offence under S. 448 read with S. 109 of I. P. C. in the Court of Magistrate Second Class Kotkhai. On 5-4-1962 the complainant was absent and on that ground the learned Magistrate discharged the respondents in exercise of the powers conferred by S. 259 of Cr. P. C. An application in revision against that order was filed before the learned Sessions Judge on the grounds that the order of discharge was illegal and the complainant was present outside the Court room throughout the day but the case was not called on for hearing. While the Sessions Judge did not accept the complainant's version as to his being present he was of the opinion that as the offence with which the respondents were chargeed was a cognizable one the provisions of S. 259 of Cr. P. C. were not attracted and accordingly he submitted the reference under consideration. Section 259 of Cr. P. C. reads as below :

"When the proceedings have been instituted upon complaint, and upon 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".

2a. It will have been noticed that the clauses "and the offence may be lawfully compounded" and "is not a cognizable offence" are joined by the disjunctive 'or'. It is an elementary rule of interpretation that when two alternative provisions are cast in positive form and are separated by a disjunctive conjunction full effect, must normally be given to both of them. A plain reading of the section, therefore, abundantly indicates that a Magistrate has the power to discharge an accused of an offence which is either compoundable or is a non-cognizable one. No difficulty would have arisen in accepting the aforesaid interpretation it compoundable and non-cognizable offences had been mutually exclusive. Some of the cognizable offences, like the offence under S. 448 of I. P. C. are, however, compoundable and the question arises as to whether a Magistrate has the power to discharge an accused of such offences. The contention is that he will not have such a power on account of the offence being a cognizable one. The aforesaid section was amended by the Amendment Act of 1923 and the words "or is not a cognizable offence" were added after the words "may lawfully be compounded" and prior to the words "the Magistrate may". I have not been able to lay my hands on the Cr. P. C. Amendment Bill 1923. The report of the Select Committee on the aforesaid Bill alongwith the notes on clauses find place in Sohoni's Code of Criminal Procedure Thirteenth Edition, 1931. The note on clause 71 reads as below :

"The amendment proposed by the Bill would give the Magistrate discretion to discharge the accused when the complainant was absent in any case instituted upon complaint. We are inclined to think that this went too far, and we think it is sufficient to extend the application of the section to cases of non-cognizable offences".

3. It appears from the aforesaid clause that the Bill as introduced in the Assembly provided that the Magistrate should have the power to discharge the accused in any case instituted upon complaint. Prior to the introduction of the Bill the power was exercisable in cases dealing with offences that could be lawfully compounded. The intention underlying the Bill was to widen the scope of S. 259. The Select Committee, however, thought that it would not be desirable to widen the scope of the section to the extent indicated by the Amendment Bill and that it would be sufficient to extend th