Waller, J. — No doubt, the language used in the three parts of Sect. 253, Criminal Procedure Code, is different, but it is, I think impossible to lay down any general principle or to attempt to define what precisely is meant by the word “groundless”. Probably, as good a definition as any is that the evidence must be such that no conviction could be rested on it. It obviously does not mean that the evidence discloses no offence whatever.
In this particular case, I see no reason to dissent from the view taken by the Courts below. It is most unlikely that any Court would have convicted after hearing the evidence of the only witness examined. The petition is dismissed.
Krishnan Pandalai, J.—This is a petition to revise the order of discharge passed by the 2nd class Magistrate of Tuticorin under Sect. 253 (2) of the Criminal Procedure Code. The complaint was brought by the father-in-law of one Sankaragomathi Chettiar who had recently died, against the cousins of the deceased and alleged that the daughter of the complainant (widow of the deceased) entrusted her own and her children's jewels worth about Rs. 4,000 and her husband's account books to the accused soon after the 15th day ceremony, for the purpose of selling the jewels and realising the outstandings and investing the proceeds for the benefit of the widow and her children and that when the accused were later questioned they denied the receipt of the jewels and accounts. The complainant stated that he presented the complaint as per his daughter's instructions and charged that the accused committed an offence under Sect. 403 of the Indian Penal Code. The Magistrate having summoned the accused the complainant was examined and cross-examined at length on 21st December, 1927 and 11th January 1928. The complainant had been previously informed that his daughter, a resident of Tuticorin and the real complainant, should be brought to Court to be examined on the 11th January. On that day she was absent. The complainant asked for a commission to examine her which was refused, the Magistrate remarking that the application was not bona fide. Then the complainant asked for an adjournment which was refused. The defence as appeared from the cross-examination of the complainant was that the deceased Sankaragomathi Chettiar had left a will under which 1st accused was executor and that he was in possession of the estate as such and not under any entrustment by the widow and that the complainant, an impecunious person, was using his daughter or her name as a tool to coerce the accused to part with the estate. The Magistrate came to the conclusion that the story told by the complainant was highly improbable, that at the best, the dispute appeared to be one of a civil nature to settle which the complaint was brought as a criminal case, that examination of further witness will not in these circumstances be of any use and therefore he discharged the accused. The District Magistrate to whom the complainant preferred a revision petition upheld the Sub-Magistrate's order and dismissed the petition being of opinion that it was frivolous.
The learned Advocate for the petitioner has urged before us that the Sub-Magistrate had no power to discharge under Sect. 253(2) before examining all the complainant's witnesses and that he could not consider the charge to be groundless before he had heard all the evidence. I wish to lay down no general rule as to whether a Magistrate should in practice examine all the witnesses available or how many of them, before acting under Sect. 253 (2). That depends entirely on the circumstances of each case for which no general rule can be laid down. But as a question of legal competence, there is no warrant for saying that Magistrates are bound to examine all witnesses that may be offered or available before taking action under that sub-section. The words of sub-sects. 1 and 2 of Sect. 253 are as plain as any words can be on that point. The first sub-section states that if on taking all the evidence referred to in Sect. 252 and if necessary examining the accused, no case is made out against the accused, the Magistrate shall discharge him. The second subsection says that nothing in that section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case, that is before all the evidence referred to in Sect. 252 has been taken, if for reasons to be recorded the Magistrate considers the charge to be groundless. Authority for supporting such a plain statutory provision would be needless. But authority there is. See Narasanna v. Venkatarayudu(1) and Kunj Behari Lal v. Emperor(2). The amount of evidence which would enable a Magistrate to say that a particular charge was groundless is so entirely dependent on circumstances that no general rule or direction except that he is required to arrive at his conclusion judicially and not capriciously is likely to be of any use. If acting judicially a Magistrate has come to the conclusion on grounds to be recorded that the charge must fail either because the allegations are false or because they disclose a dispute of a civil nature which is distorted into a criminal case or for any other reason, then there is nothing to prevent him from discharging the accused before all the complainant's witnesses have been examined. It follows that the action taken by the Sub-Magistrate was fully within his competence. In revision we are not accustomed to enquire into the merits to see whether the conclusions of the lower Court are correct on the facts. But I see nothing in the facts which would enable me to say that the order of the Magistrate was not a proper and judicial order. The petition is dismissed.
N. R. R.Petition dismissed.