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1980 DIGILAW 293 (KER)

MATHEW PAILY v. PRABHAKARAN

1980-11-12

U.L.BHAT

body1980
Judgment :- 1. The complainant in C. C. No. 441 of 1978 on the file of the Judicial Magistrate of the II Class, Ernakulam challenges the order of discharge passed by the Magistrate under S.245(2) of the Code of Criminal Procedure (hereinafter referred to as the 'Code'). 2. On 29-3-1978 the revision petitioner filed a private complaint before the trial Magistrate stating that on 28-3-1978 at about 8.30 a. m. accused (respondents 1 to 7 herein) formed themselves into an unlawful assembly with the common object of committing trespass into his property and committing theft of coconuts, arecanuts, cashew nuts, pineapples, etc. belonging to him and actually committed theft of these fruits of the value of Rs. 200 and the same was done under the instigation of the 7th respondent According to him, there was ill-feeling between the parties because he objected to their walking along the canal bund passing through his property, which has been acquired by the Government. The trial Magistrate took cognizance of the case and issued summons. Respondents 1 to 7 appeared before the Magistrate. Pws. 1 and 2 were examined. pw.3 was partly examined and at that stage, the learned Magistrate stopped the enquiry and passed an order of discharge under S.245 (2) of the Code on the ground that the complainant's case is groundless. This order is now challenged in this revision. 3. The only contention urged at the bar by the learned counsel for the revision petitioner is that when once cognizance was taken and summons was issued under S.201 of the Code, the learned Magistrate had no jurisdiction to pass an order of discharge under S.245 (2) of the Code, without receiving the entire evidence produced by the complainant. Consequently, it is argued that the learned Magistrate was not justified in not recording the evidence of all the witnesses cited by the complainant. 4. I am afraid, I am unable to agree with this argument. When a complaint is filed in court in regard to a warrant case there are five stages of disposal. S.200 of the Code requires the Court to examine upon oath the complainant and the witnesses, if any, present in the court and reduce the substance of such examination to writing and take the signatures of the complainant and the witnesses therein. S.200 of the Code requires the Court to examine upon oath the complainant and the witnesses, if any, present in the court and reduce the substance of such examination to writing and take the signatures of the complainant and the witnesses therein. After so doing, under S.202 of the Code the Magistrate may either postpone the issuance of process to the accused and inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding with the case. In other words, after recording the sworn statement of the complainant and of the witnesses, the above alternatives are open before him under S.202 of the Code if he decides, to postpone process. S.203 of the Code lays down that if, after considering the statements on oath of the complainant and of the witnesses and the result of the inquiry or investigation, if any, under S.202, the Magistrate is of the opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint recording briefly the reasons for so doing This is one way of final disposal of a complaint contemplated in the Code. 5. S.204 of the Code relates to issue of process to the accused in cases where after taking cognizance of an offence, the Magistrate finds that there are sufficient grounds for proceeding. The stage could be reached after the stage contemplated in S.200 or 202 of the Code. 6. The next stage is found in S.244 of the Code Under this section, the Magistrate shall hear the prosecution and take all such evidence as may be produced in support of the prosecution Having taken all such evidence, it is open to the Magistrate to do one of the two things, viz., (i) pass an order of discharge under S 245(1) of the Code on the ground that do case against the accused has been made out which, if unrebutted, would warrant his conviction, or (ii) proceed to frame charge against the accused under S.246 of the Code. When once a charge is framed, the Magi-state has to conduct the trial (that is, in a warrant case) as laid down in S.246 and 247 of the Code and pass orders under S.248 of the Code either acquitting or convicting the accused. These are two other stages of disposal. Under S.249 of the Code, on any hearing day, the Magistrate has power to discharge an accused in a compoundable or non-cognizable offence if the complainant is absent. 7. I have now referred to four stages in a warrant case. There is yet another intermediary stage covered by S.245 (2) of the Code. It is true that under S.244 of the Code the Magistrate is under a duty to take all such evidence as may be produced by the prosecution, and it is after taking all such evidence that he must decide whether there should be an order of discharge under S.245 (1) of the Code or a charge under S.246 of the Code. There may be cases where after examining one or two witnesses, the evidence and the circumstances placed before Magistrate may appear to be of such a nature that he may legitimately think that further enquiry would serve no purpose at all, much less the the interest of justice. In such a case, it is open to him to come to the conclusion that the charge is groundless Thereupon, S.245 (2) of the Code permits the Magistrate to pass an order of discharge and this, in my opinion, is the second stage of disposal of a warrant case. Similarly, even without taking the entire prosecution evidence, it is open to the Magistrate to halt the enquiry and frame a charge as contemplated in S.246 of the Code. I am, therefore, unable to agree that the Magistrate had no jurisdiction to stop the evidence and deal with the case under S.245 (2) of the Code. 8. The learned counsel for the petitioner has placed reliance on the decisions reported in Parameswara Menon v. Bhaskaran (1959 KLT. 1134) and in Kurien Samuel v. Ramakrishna Kurup and others (1975 KLT. 244). In the former case after examining three witnesses out of the seven witnesses and the complainant, the case was adjourned for the questioning of the accused. 8. The learned counsel for the petitioner has placed reliance on the decisions reported in Parameswara Menon v. Bhaskaran (1959 KLT. 1134) and in Kurien Samuel v. Ramakrishna Kurup and others (1975 KLT. 244). In the former case after examining three witnesses out of the seven witnesses and the complainant, the case was adjourned for the questioning of the accused. This was found to be illegal as being contrary to the provisions of S.253 (1) of the old Code (corresponding to S.245 (1) of the present Code). That case dealt with an entirely different situation. The decision only means that where the Magistrate does not find any justification to act under S.245 (2) of the Code, he is bound to take all the evidence produced by the prosecution under S.244(1) of the Code before he questions the accused or proceeds to frame a charge. In the second decision, viz. Kurien Samuel v. Ramakrishna Kurup and others (1975 KLT. 244), after evidence of some witnesses was recorded, the complainant filed a petition praying that a few more witnesses may be examined. This petition escaped the notice of the magistrate. Therefore, without assigning any reason for not examining those witnesses, for whom steps had been taken, the magistrate passed an order of discharge under S.253 (1) of the Old Code. (S. 245 (1) of present Code). It was rightly held that an order under S.245 (1) of the Code could be passed only after taking or receiving all the evidence of the prosecution. In that decision this Court had no occasion to consider about the stage at which an order could be passed under S.245 (2) of the Code. The two decisions relied on by the learned counsel for the petitioner do not support the stand taken by him. It has not been argued before me that on the basis of the materials available on record the decision taken by the learned Magistrate is erroneous. This Criminal Revision Petition is, accordingly, dismissed.