Discharge under Section 258 Cr.P.C. cannot replace mandatory processes against absconding accused as stipulated under Sections 82 and 83 Cr.P.C.

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-II, 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.

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

4. In the Summary Trial Cases covered by Crl.R.C. Nos.645, 656, 657, 662, 682, 773, 775, 779, 794 and 796 of 2018 the second respondent-accused allegedly committed the offence under Section 63 read with Section 15(C) of the Abkari Act, and in Summary Trial Cases covered by Crl.R.C. Nos.678, 699 and 732 of 2018 they allegedly committed the offence under Section 27(b) of the NDPS Act, and in Summary Trial Case covered by Crl.R.C. No.705 of 2018 the second respondent allegedly committed the offence under Section 160 IPC. In the rest of the cases 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 a few cases the offence under Section 181 read with Section 3(1) of the Motor Vehicles Act.

5. In the Summary Trial Case covered by Crl.R.C. No.732 of 2018 the learned Magistrate discharged the second respondent under Section 258 Cr.P.C. observing that “it as an old case and though six arrest warrants were issued against him there was only a remote chance of securing his presence.” 6. In the Summary Trial Cases covered by Crl.R.C.

Nos.706 and 773 of 2018 the order passed by the learned Magistrate is that “the accused deemed absconding and discharged.” In the rest of the cases the learned Magistrate passed the following two word order: “Accused discharged”.

7. It is seen from the proceedings sheet in the above cases that the learned Magistrate ordered issuance of summons to the second respondent/accused. Thereafter he 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.

8. 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.

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

In the result, these criminal revision cases are allowed. The orders passed by the learned Magistrate in the Summary Trial Cases are set aside. The learned Magistrate is directed to take back the cases on his file and proceed with them in accordance with law. K.ABRAHAM MATHEW JUDGE SMA