The Kerala High Court has observed that a Magistrate cannot invoke Section 258 of the Criminal Procedure Code to stop proceedings merely because the accused had absconded or that despite the initiation of coercive proceedings, his presence could not be secured.
Justice Raja Vijayaraghavan V. observed thus while disposing suo motu revision petitions registered after it was brought to the notice of the Court that magistrates in Kollam had disposed large number of cases invoking Section 258 of the Cr.P.C.
Proceedings in many cases (registered under Section 15(c) r/w. Section 63 of the Abkari Act, Section 27(b) of the Narcotic Drugs and Psychotropic Substances Act, and Section 279 of the IPC r/w. Section 185 of the Motor Vehicles Act) were stopped by a Magistrate citing the failure of the prosecution to procure the presence of the accused before the court.
Section 258 Cr.P.C. gives power to a Magistrate of the First Class or with the previous sanction of the Chief Judicial Magistrate, any other judicial Magistrate, to stop the proceedings at any stage without pronouncing a judgment by recording the reasons for the same. The provision also states that where such stoppage of proceedings is made after the evidence of the principal witnesses has been recorded; the Magistrate shall pronounce a judgment of acquittal. In any other case, the court can release the accused and such release shall have the effect of discharge. The court said:
"Section 258 can be invoked only in peculiar and unusual circumstances in cases, wherein no prima facie case is made out against the accused or when the accusation does not actually constitute an offence or for the reason that the prosecution is bound to fail on account of a technical defect. For the reason that the accused had absconded or that despite the initiation of coercive proceedings, his presence could not be secured is no reason to invoke Section 258 of the Cr.P.C."
The court said that the Magistrate, in these cases, had not made any genuine endeavour to secure the presence of the accused by exhausting the provisions under the Code. Setting aside the orders, the court observed:
"The order is laconic and is not supported by any reasons. The learned Magistrate has exceeded in its powers in invoking provisions of Section 258 of the Code and hence, cannot be sustained, the same being illegal and irregular."
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