ORDER
Dixit, J.
1. This is a petition to revise an order of the City Magistrate Lashkar discharging the non-applicant accused persons. The applicant is prosecuting the accused for an offence under Section 500, I. P. C., alleging that the non-applicants Maya Shankar and Jhanman Lal, the Editor and the Printer respectively of ‘Dainik Madhya Bharat Samachar’ printed and published in an issue of the paper dated 10.3.50, a news item to the effect that it was learnt that a prominent Jhagirdar of Madhya Bharat who owned a Jagir in Hyderabad and who was a member of the Muslim League wag involved in the conspiracy for the abscondance of Liak Ali and that this Jagirdar was seen in Hyderabad a few days back and had also met the wife of Liak Ali. The complainant alleged that the imputation in the news item obviously referred to him and that by that imputation, his reputation had been harmed.
On 15.11.50, Virendra Singh, the last witness whom the complainant wished to examine on his behalf and who had been summoned by the Court, did not appear in spite of the service of the summons on him. The learned Magistrate without taking any steps to secure the attendance of this witness, passed an order discharging the accused persons on the evidence of the witnesses till then examined for the prosecution. The complainant then applied to the learned Sessions Judge Gwalior for a revision of the order of the City Magistrate. Before the learned Sessions Judge, it was urged that the order of discharge passed by the Magistrate without examining Virendra Singh was not legal.
The learned Sessions Judge admitted the force of the contention that the Magistrate should have taken steps to procure the attendance of Virendra Singh for giving evidence. But he came to the conclusion that under Section 253(2), the Magistrate was empowered to discharge the accused at any stage of the case without examining the complainant’s witnesses. He also observed that the learned City Magistrate should have, in the order of discharge, fully discussed the evidence led by the complainant and the reasons for discharging the accused persons. In the end, the learned Sessions Judge saw no ground for disagreeing with the decision of the City Magistrate.
2. In this revision petition, the main contention advanced On behalf of the petitioner is that the City Magistrate was not competent to discharge the accused persons without recording the evidence of prosecution witness Virendra Singh who had been summoned to give evidence but who had failed to obey the summons. In my opinion, this contention must be accepted. It is not disputed on behalf of the non-applicants that Virendra Singh was summoned by the Court and that he failed to appear in the Court to give evidence. It is also not contested that the complainant had not made a declaration that he did not wish to examine this witness.
I do not agree with the learned Sessions Judge that, the order of discharge passed by the trial Court was under Section 253(2) of the Criminal P.C. Sub-section (1) of this section authorizes the Magistrate to discharge an accused person, if upon, taking all the evidence referred to in Section 252, and making such examination of the accused person as he may think it necessary, the Magistrate comes to the concussion that no case against the accused has been made out. Sub-section (2) of Section 253, empowers the Magistrate to discharge an accused person before all the witnesses are examined if for reasons to be recorded by him, he considers the charge to be groundless.
Now there is difference between a discharge of an accused under Sub-section (1) and a discharge under Sub-section (2). While under the first sub-section, the discharge is on the ground that no case has been made out, under the second sub-section, the discharge is on the ground that the charge against the accused is groundless. To say that no case is made out is not the same thing as saying that the charge is groundless. The first sub-section obviously contemplates the taking of all the evidence referred to in Section 252. Sub-section 2 deals with cases in which the complaint appears to be so groundless ‘ab initio’ or after some witnesses of the complainant have been examined that the examination of all or any of the remaining witnesses for the prosecution cannot materially help the case of the complainant. See Mohommed Sheriff v. Abdul Karim AIR 1928 Mad 129 (1).
In the present case both the Courts below overlooked the difference between the two subsections of Section 253. The order of the Magistrate discharging the non-applicants is obviously not under the second part of Section 253. He discharged the non-applicants on the ground that the complainant had failed to prove that he was a member of the Muslim League or that he had met Liak Ali’s wife or that he was the only Jagirdar of the Madhya Bharat owning Jagirdars land in Hyderabad. The learned City Magistrate does not say that even if these facts are held to be established by the evidence already recorded by him or by the evidence of Virendra Singh to be recorded, the charge made by the complainant against the accused would be groundless.
In fact, in the present case, the Magistrate recorded the evidence of witnesses produced by the complainant and also issued a summons to Virendra Singh for giving evidence on behalf of the prosecution. It is not, as if, the Magistrate thought it unnecessary to record the evidence of any of these witnesses after ascertaining from the complainant the nature of the evidence that they were going to give. In my opinion, when a Magistrate has taken under Section 252(1) all the evidence produced by the complainant in support of the prosecution and then he has also issued summonses under Section 252(2) to witnesses to give evidence for the prosecution, he cannot discharge the accused persons without examining the witnesses so summoned unless he conies to a conclusion about the evidence which is to be given by those witnesses and finds that even if that evidence is recorded, the charge would be groundless. The order of the discharge of the City Magistrate cannot, therefore, be supported by Sub-section (2) of Section 253. The order of discharge passed by him is clearly one under Sub-section (1). But it is not legal as it was passed without taking all the evidence contemplated under Section 262.
3. I, therefore, set aside the order of discharge passed by the City Magistrate Lashkar and direct him to record the evidence of the complainant’s witness Virendra Singh and decide the case on the full evidence tendered by the complainant.
