A discharge under Section 258 Cr.P.C. is improper if the court fails to explore all procedural avenues for handling absconding accused.

ORDER

These criminal revision cases were registered suo motu by this court on its noticing that the order of discharge passed by the Judicial Magistrate of First Class-III (Temporary), Kollam in the cases covered by these criminal revision cases is illegal.

2. Though notice was served on the second respondent in each case, who were the accused in the court below, they have not appeared in person or through counsel except in Crl.R.C. No.2008 of 2018.

3. All the cases were registered in the court below as Summary Trial Cases.

4. In the Summary Trial Cases covered by these Crl.R.Cs. the second respondent allegedly committed the offence under Section 279 IPC. In most of these cases the second respondent also allegedly committed the offence under Section 185 of the Motor Vehicles Act and in few cases the offence under Section 181 r/w Section 3(1) of the Motor Vehicles Act and some other offences under the Motor Vehicles Act. 5. In the Summary Trial Cases covered by Crl.R.C. Nos.1965 &

1976 of 2018 the learned Magistrate discharged the second respondent under Section 258 Cr.P.C. observing that “Even after the issuance of coercive steps the presence of accused cannot be procured with. The prosecution failed to produce the accused before the Court even after the issuance of repeated process. Hence proceedings are closed u/s 258 Cr.P.C. and the accused is discharged”. In the Summary Trial Cases covered by Crl.R.C. Nos.1835, 2011, 2012 & 2035 of 2018 the learned Magistrate discharged the second respondent under Section 258 Cr.P.C. observing that “Even after the issuance of coercive steps the presence of accused cannot be procured with. Hence proceedings are closed u/s 258 Cr.P.C.”. In the rest of the cases the learned Magistrate passed the following two word order: “Proceedings closed u/s 258 Cr.P.C.”. In these cases no reasons are stated in the order.

6. It is seen from the proceedings sheet in the above cases that the learned Magistrate ordered issuance of summons to the second respondent. Thereafter she ordered issuance of non-bailable arrest warrant. It was thereafter the order of discharge was passed. The learned Magistrate has not recorded that the summons was served on the second respondent or that non-bailable arrest warrant was returned unexecuted. It is not even clear whether the process was actually issued from the court.

7. Even if it is assumed that the accused were absconding, the learned Magistrate should have initiated proceedings against them under Sections 82 and 83 Cr.P.C. The power under Section 258 Cr.P.C. cannot be exercised to stop the proceedings on the mere ground that the accused is absconding.

8. Thus, in any view of the matter, the order passed by the learned Magistrate in these criminal revision cases is patently illegal. It is liable to be set aside.

In the result, these criminal revision cases are allowed. The order passed by the learned Magistrate in the Summary Trial Cases is set aside. The learned Magistrate is directed to take back the cases on her file and proceed with them in accordance with law.

K.ABRAHAM MATHEW JUDGE vps /True Copy/ PS to Judge