Improper discharge under Section 258 Cr.P.C. requires proper procedural adherence, specifically in relation to 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-II, Kollam in the cases covered by these criminal revision cases is illegal.

2. Though notice was served on the party respondent/s 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 these Crl.R.Cs the party respondent/s allegedly committed the offence under Section 15(C) of the Abkari Act and in few other cases some other offence under the Abkari Act and in a case the offence under the Gaming Act.

5. In the Summary Trial Cases covered by Crl.R.C.

Nos.895, 1444, 1546 and 1550 of 2018 the learned Magistrate discharged the party respondent/s under Section 258 Cr.P.C. observing that “Accused deemed absconding. Proceedings stopped. Accused discharged.” In the Summary Trial Case covered by Crl.R.C. No.1120 of 2018 the learned Magistrate discharged the party respondent/s under Section 258 Cr.P.C. observing that 'Already two warrants were issued. Finding the remote chance of procuring the presence of accused, proceedings stopped and accused is discharged u/s 258 Cr.P.C.” In the rest of the cases the learned Magistrate passed the following two word order: “Accused discharged”. 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 party respondent/s. 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 party respondent/s 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 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.