Sadha Singh vs Bahadur Singh and ors.

B.S. Yadav, J.

The facts leading to this petition under section 482, Criminal Procedure Code (for short, the Code) are that Sadha Singh had filed a criminal complaint under sections 447, 379, 427 and 506 all read with section 34 of the Indian Penal Code, in the Court of Judicial Magistrate 1st Class, Samrala, against the present respondent Nos. 1 to 4 (hereinafter referred to as the accused) Respondent No. 5 is the State of Punjab. In the complaint it was alleged that the complainant had purchased a piece of land situated in village Rahon for the construction of a warehouse. He had installed a hand pump at the cost of Rs. 1200/ and had spent Rs. 1500/ on the construction of a kotha. On the night of l2th July, 1981, the accused demolished the hand pump and the kotha and took away the material of the hand pump as well as the bricks. After recording preliminary evidence the learned Magistrate found that there was sufficient grounds for proceeding against the accused under sections 447 and 379 both read with section 34 of the Indian Penal Code. The accused were summoned accordingly. Some pre charge evidence was recorded. On 5th October, 1982, the complainant was absent. The learned Magistrate dismissed the complaint for want of prosecution and discharged the accused.

Feeling aggrieved the complainant filed revision petition which was heard by the learned Additional Sessions Judge, Ludhiana. He dismissed the same on the ground that there was no evidence to hold that the stolen property was worth more than Rs. 250/. Thus according to him, as the offences were compoundable, the order of learned Magistrate was correct. In this petition the petitioner had challenged the order dated 5th October, 1982 passed by the trial Court.

The learned counsel for the petitioner argued that if the complainant, was absent, the learned Magistrate could have discharged the accused only in the offences falling in the category specified under section 249 of the Code. According to him, the Magistrate could not have discharged the accused as the offences falling under section 379 of the Indian Penal Code for the commission of which the accused had been summoned, was neither compoundable noncognizable. On the other hand, the learned counsel for the accused argued that the offence under section 379 Of the Indian Penal Code is compoundable though with the permission of the Court if the value of the property stolen does not exceed Rs. 250/ and in the present case the Addl. Sessions Judge has given a finding to the effect that there was no evidence on the file to show that the stolen property was worth more than Rs. 250/ and that finding cannot be interfered with the proceed under section 482 of the Code. It was not disputed by the learned counsel for the accused that the trial Magistrate could dismiss the complaint and discharge the accused only in the eventuality if the offences in question were either noncognizable or were lawfully compoundable.

The order of the learned Additional Sessions Judge was produced before me for perusal. That order shows that during the precharge evidence the complainant had appeared in the witnessbox and had produced one cash memo which was marked `A'' and it showed that the value of some of the material used for setting up the hand pump was Rs. 850/. That receipt was not exhibited but it was only marked perhaps on the ground that it was not properly proved. As noticed earlier, the petitioner''s allegation is also to the effect that the accused had removed the bricks of the Kotha on the construction of which he had spent Rs. 1500/. Thus if the prima facie allegations of the complainant are taken as correct, then the value of the stolen property would come to much more than Rs. 250/.

It is to be noted that for bringing home the charge under section 379 of the Indian Penal Code to an accused, it is not necessary that there should be evidence about the value of the stolen property because the quantum of sentence prescribed under that section has not been made dependent upon the value of the stolen article. The value of the stolen property becomes relevant only for the purposes of section 95 of the Indian Penal Code or section 320 of the Code. Section 95 of the Indian Penal Code reads as follows :

"Nothing is an offence by reason that it causes, or that is intended to cause, or that it is known to be likely to cause, any harm, if that harm is so slight that no person of ordinary sense or temper would complain of such harm."

Admittedly, in the present case the property stolen was not of such little value that no person of ordinary sense or temper would complain of it, U/s. 320 of the Code the offence of theft can be compounded by an accused with the owner of the property with the permission of the Court if the value of the property stolen does no exceed Rs. 250/. Thus when there was no occasion for either party to invoke the provisions of section 95 of the Indian Penal Code or section 320 of the Code it was not necessary for the complainant to lead evidence about the value of the property stolen. Therefore, the learned Additional Sessions Judge was not justified in saying that as there was no evidence to hold that as the complainant had not led any evidence to show that the stolen property was worth more than Rs. 250/ the order of the learned trial Court was correct.

If the complainant is absent the Magistrate can exercise the discretion vested in him under section 249 of the Code to discharge the accused. That jurisdiction is to be exercised judicially and not arbitrarily. He has not to make an order of discharge automatically. He has to examine the evidence of the case before he proceeds to discharge the accused. In the present case, when the complainant did not appear and the Magistrate wanted to exercise the discretion in favour of the accused he ought to have gone into the fact that what was the value of the stolen property and whether it could be ascertained from the evidence on the record. However, he did not care to adopt this procedure and it appears that he automatically discharged the accused when the complainant did not appear.

As discussed above, the property said to have been stolen by the accused was prima facie worth more than Rs. 250/. Thus the offence under section 379 of the Indian Penal Code was noncompoundable. Hence the learned Magistrate was not justified in discharging the accused when the complainant did not appear on the date fixed in the case.

The learned counsel for the accused argued that the accused were discharged on 5th October, 1982, and they will suffer hardship if this Court exercised its inherent powers of the present case. I am of the opinion that it is not sufficient ground for allowing the illegal order to stand.

For the foregoing reasons, I accept the present petition and quash the order of the learned trial Court discharging the accused and send the case back to it to proceed with in accordance with law. The parties have been directed to appear in the trial Court on 3rd July, 1984. As the case has already become very old, it is directed to complete the trial within 4 months from the date the parties appear before it. The records be sent immediately to the trial Court.