REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  329     OF  2009 [Arising out of S.L.P. (Criminal) No. 6824 of 2008]

RENUKA       … APPELLANT

Versus

STATE OF KARNATAKA & ANR.   … RESPONDENTS

J U D G M E N T

S.B. SINHA, J.

1. Leave granted.

2. One Smt. Manjula on or about 23.12.2001 made a complaint alleging

that ten days prior thereto, i.e., on 13.12.2001 a quarrel had taken place by

and between the complainant  and appellant,  during  course of  which,  the

appellant  trespassed  in  her  compound,  restrained  her,  pulled  her  hair,

assaulted  her  with  chappal,  removed  the  mangalsutra  and  damaged  the

bangles causing loss of Rs.200/- to her.

3. A  first  information  report  on  the  said  basis  was  lodged  for

commission of offences punishable under Sections 447, 341, 323 and 427 of

the Indian Penal Code (for short, “the IPC”).  A charge-sheet was submitted

on 15.2.2002 upon completion  of  investigation.   Cognizance of  offences

was taken on 28.9.2002.  Processes were issued against the accused.  The

same having not been served, non-bailable warrant was issued.  The matter

was listed on various dates.  The learned Magistrate on or about 14.10.2004

in view of non-service of non-bailable warrant passed the following order:

“Accused absent.  It is noted that accused vacated her address  and her whereabouts  are not known. Offence  are  triable  as  summons  case.   Hence further proceedings stopped U/s 258 Cr. P.C.”

4. It,  however,  appears  that  on  or  about  19.4.2006,  a requisition  was

filed praying for issuance of non-bailable warrant of arrest to the accused

upon reopening the case.  The said application is  not on record.  On the

basis of the said purported requisition, the case was reopened and a non-

bailable warrant  of arrest  was issued against  the appellant.   She filed an

application under Section 482 of the Code of Criminal Procedure (for short,

“the Code”) before  the High Court  of Karnataka at  Bangalore,  which by

reason of the impugned judgment  has been dismissed,  stating that  as the

order of the trial court dated 14.10.2004 was clear that further proceedings

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had been stopped on the premise that whereabouts of the appellant were not

known and as the case had not been closed and having regard to the fact that

she has now been traced out, the trial court could permit the prosecution to

reopen its case.  

5. Mr. R.S. Hegde, learned counsel appearing on behalf of the appellant

would contend that when an order is passed under Section 258 of the Code

in a case where evidence had not been recorded, the consequence thereof

would be that of discharge.

6. Ms.  Anitha  Shenoy,  learned  counsel  appearing  on  behalf  of  the

respondents, on the other hand, would urge that as no order of acquittal has

been recorded, the court had ample jurisdiction to revive the proceedings.

Our attention in this behalf has been drawn to Sections 258 and 300(1) &

(5) of the Code.   

7. Indisputably  in  this  matter,  the  procedure  laid  down  for  summons

case was adopted by the learned trial judge.  

Section 258 of the Code reads thus:

“258. Power  to  stop  proceedings  in  certain cases.-  In any summons-case instituted otherwise than upon complaint, a Magistrate of the first class or, with the previous sanction of the Chief Judicial Magistrate, any other Judicial Magistrate, may, for reasons  to  be  recorded  by  him,  stop  the

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proceedings at any stage without pronouncing any judgment and where such stoppage of proceedings is  made  after  the  evidence  of  the  principal witnesses  has  been  recorded,  pronounce  a judgment  of  acquittal,  and  in  any  other  case, release  the  accused,  and  such  release  shall  have the effect of discharge.”

Section 258 of the Code corresponds to Section 249 of the Code of

Criminal Procedure, 1898 with minor changes.  Section 249 of the Code of

Criminal Procedure, 1898 reads as under:

“249. In any case instituted  otherwise than upon complaint,  a  Presidency Magistrate,  a  Magistrate of the first class, or, with the previous sanction of the District Magistrate, any other Magistrate, may, for  reasons  to  be  recorded  by  him,  stop  the proceedings at any stage without pronouncing any judgment  either  of  acquittal  or  conviction,  and may thereupon release the accused.”

In the  new Section,  the  word  “summons” has  been  added  and the

words “a Presidency Magistrate” after “complaint” have been omitted. The

words ‘District Magistrate, any other Magistrate’ have been substituted by

the words ‘Chief  Judicial  Magistrate,  any other  Judicial  Magistrate’.  The

words  ‘either  of  acquittal  or  conviction  and  may  thereupon  release  the

accused’ have been substituted by the words “and where such stoppage of

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proceedings is made after the evidence of the principal witnesses has been

recorded, pronounce a judgment of acquittal, and in any other case, release

the accused, and such release shall have the effect of discharge.

8. In this case, no order for release of the accused was passed.  No order

of releasing the accused was necessary to be passed as the appellant was not

before the court.  She had not even been arrested. Non-bailable warrant of

arrest issued against her had not been executed.   

Article  20  of  the  Constitution  of  India  provides  that  a  person

acquitted  for  an  offence  shall  not  be  tried  again  for  the  same  offence.

Section 300 of the Code was enacted to give effect thereto. We may notice

sub-Sections (1) and (5) thereof:

“300. Person once convicted or acquitted not to be tried for same offence.- (1) A person who has once  been  tried  by  a  Court  of  competent jurisdiction  for  an  offence  and  convicted  or acquitted  of  such  offence  shall,  while  such conviction  or  acquittal  remains  in  force,  not  be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different  charge  from the  one  made  against  him might  have  been  made  under  sub-section  (1)  of section  221,  or  for  which  he  might  have  been convicted under sub-section (2) thereof.

xxx xxx xxx

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(5) A  person  discharged  under  Section  258 shall not be tried again for the same offence except with  the  consent  of  the  Court  by which  he  was discharged or of any other Court to which the first- mentioned Court is subordinate.”

9. The proceedings were stopped by the learned Magistrate in terms of

the order dated 14.10.2004.  No consequential order was passed and indeed

could not have been passed.  The benefit of effect of discharge could have

been claimed by the  appellant  had  she  been directed  to  be released,  the

effect  of  discharge  being  correlated  with  release.   If  she  had  not  been

released, the question of her obtaining the benefit of the effect of discharge

does not arise.  An order of discharge can be passed in terms of Section 245

of the Code.  For passing an order under the aforesaid provision, reasons are

required to be recorded.  {See Sheonandan Paswan vs. State of Bihar & ors.

[(1987) 1 SCC 288, Para 81]}

10. The  learned  Magistrate  in  this  case  did  not  record  any  reason.

Mandatorily reasons were required to be recorded.  The learned Magistrate,

thus, although has power to revive the proceedings, he should have passed

an appropriate order upon application of mind.  He did not do so.  He has

directed  reopening  of  the  case  and  directed  issuance  of  non-bailable

warrants of arrest again without recording any reason.  It appears from the

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Order  Sheet  dated  19.4.2006  that  some reasons  have  been  stated  in  the

requisition made by PSI, B. Nagar, Police Station, Bangalore for issuance of

non-bailable warrant of arrest upon reopening the case.  It was obligatory on

the part of the learned Magistrate to apply his mind with regard thereto.   

11. For the reasons aforementioned, although the High court was correct

that  the learned Magistrate  in  a situation  of  this  nature  could  revive the

proceedings, in our opinion, the learned Magistrate committed an error in

not  recording  reasons  therefor.   We,  therefore,  while  setting  aside  the

impugned order passed by the High Court as well as the order passed by the

learned Magistrate reopening the case, direct the learned Magistrate to pass

an  appropriate  order  upon  consideration  of  the  requisition  filed  by  the

Police Authorities afresh.  The appeal is disposed of accordingly.   

……………….…..………….J. [S.B. Sinha]

..………………..……………J. [Cyriac Joseph]

New Delhi; FEBRUARY 18, 2009

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