Mani v. Joseph — 1999 DIGILAW 336 (KER)

Judgment :- G. Sasidharan, J. This is a petition filed under S.48 2 of the Code of Criminal Procedure, here-in-after referred to as 'the Code', by the complainant in C.C. No. 398 of 1993 on the file of the Judicial Magistrate of the First Class, Payyannur. Respondents 1 to 8 were the accused in the above case which was taken on file on the basis of the allegation of the petitioner in the complaint filed by him in the Court regarding the commission of the offences under Ss.141, 142, 143, 144, 147, 148, 149, 342, 347 and 306(ii) of the Indian Penal Code. The learned Magistrate after taking evidence under S.244 of the Code, discharged respondents 1 to 8 under S.245(1). There was a revision filed by the present petitioner in the Court of the Sessions Judge, Thalassery, which was dismissed by the learned Additional Sessions Judge on finding that there was no reason for interference in revision. In this petition, the petitioner prays that the order of discharge made by the learned Magistrate and the order of the learned Additional Sessions Judge in revision may be set aside and the learned Magistrate may be directed to proceed with the complaint in accordance with law. 2. Petitioner would allege that he was conducting a Band Set Troupe by name ' Alphonsa B and Set'. He was running the above troupe from 1991 and he would allege that the musical instruments necessary for the troupe were purchased by him and the instructor Scaria from St. Mary's Musical Band, Vellad. According to the petitioner, the troupe was conducting programmes during festivals and respondents 1 to 8 were the members of the troupe. Some of the musical instruments were found stolen and as a result of that respondents 3 to 7 were dismissed from the troupe. After dismissal of the above respondents, the petitioner was running the troupe and practice was being done in the residence of one Mouwanickal Chackochan. The occurrence is alleged to have taken place on 10.3.1993 at about 7.30P.M. The allegation is that petitioner along with his troupe members were going home after rehearsal with the musical instruments and when they reached the way near the house of the 1st respondent, he invited them to his house. Respondents 2 to 8 were present in the house of the 1st respondent and they were having weapons with them. Respondents 2 to 8 were present in the house of the 1st respondent and they were having weapons with them. On seeing them, the petitioner and other members of the troupe tried to escape from there and it is alleged that respondents 1 to 8 wrongfully confined them and compelled the petitioner to take back respondents 3 to 7 in the troupe. There is also allegation that the 1st respondent intimidated the petitioner with dire consequences and he also slapped him on his face. The first respondent is alleged to have pulled the shirt of the petitioner and the accusation against the other respondents is that they took away the musical instruments. The statement in the complaint is that musical instruments worth Rs. 7,000/- were taken away by respondents 1 to 8. The private complaint was filed in the Court of the Magistrate, according to the petitioner, because no action was taken by police on a complaint made by him to them. Even though the complaint filed by the petitioner before the Magistrate there was allegation that respondents 1 to 8 committed the offences under Ss.342 and 347 also, the Magistrate took cognizance of the offences under Ss.143, 144, 147, 148, 323, 506(ii) read with S.149 IPC. 3. The learned Magistrate while conducting enquiry under S.202 of the Code issued search warrant for recovering the musical instruments alleged to have been taken away by respondents 1 to 8. The police seized the musical instruments from the house of the first respondent. Claim was made by the petitioner as well as the respondents for interim custody of the musical instruments and the learned Magistrate gave musical instruments back to the first respondent. 4. After respondents 1 to 8 appeared in the trial court, the learned Magistrate proceeded to take evidence under S.244 of the Code. Four witnesses were examined on the side of the petitioner and two documents were admitted in evidence. Thereafter, after considering the materials placed before the learned Magistrate by the petitioner, a decision was taken by the learned Magistrate to discharge respondents 1 to 8 under S.245(1) of the Code. The learned Sessions Judge in revision found that there was no reason for interference in the order of discharge made by the learned Magistrate. 5. Thereafter, after considering the materials placed before the learned Magistrate by the petitioner, a decision was taken by the learned Magistrate to discharge respondents 1 to 8 under S.245(1) of the Code. The learned Sessions Judge in revision found that there was no reason for interference in the order of discharge made by the learned Magistrate. 5. The petitioner would say that the approach made by the learned Magistrate in appreciating the evidence adduced by the petitioner under S.244 of the Code is incorrect for the reason that the attempt made by the learned Magistrate through out was to find out whether there was sufficient evidence for conviction of respondents 1 to 8. According to the petitioner, the learned Magistrate ought to have considered only the question whether a prima facie case had been made out by the petitioner. The order of discharge made by the learned Magistrate as well as the order of the Sessions Judge, by which revision was dismissed, are challenged by the petitioner by saying that what the above two authorities did was to make an assessment of the evidence adduced by the petitioner for the purpose of seeing whether evidence is sufficient for entering a conviction of the respondents. It is maintained by the learned counsel appearing for the petitioner that the materials made available to the Magistrate at the time of adducing evidence under S.244 of the Code were more than sufficient for showing that the petitioner had a prima facie case. 6. Petitioner was examined in the Court of the Magistrate as PW.1 Three other witnesses were also examined on the side of the petitioner as Pws. 2 to 4. Pws.1 and 2 were not cross-examined by the learned counsel appearing for respondents 1 to 8. Pws. 3 and 4 were cross-examined by him. A reading of the judgment of the learned Magistrate would go to show that much importance was given by the Magistrate to the statement made by Pws.1 and 3 that formerly musical instruments were kept in the house of the first respondent and that rehearsals were being conducted in his house. Pws. 3 and 4 were cross-examined by him. A reading of the judgment of the learned Magistrate would go to show that much importance was given by the Magistrate to the statement made by Pws.1 and 3 that formerly musical instruments were kept in the house of the first respondent and that rehearsals were being conducted in his house. The Magistrate would say that it was because of the above statement made by those witnesses that he refused to take cognizance of the offence under S.347 I.P.C. even though there was statement in the complaint that the offence under that section was also committed by respondents 1 to 8. In the complaint, the statement was that rehearsals were being conducted in the house of one Mouwanickal Chackochan. Another point which weighed with the learned Magistrate for discharging respondents 1 to 8 is that in the photograph relied on by the respondents., the first respondent was also seen and hence he could be said to be the manager of the troupe 7. The learned Additional Sessions Judge who disposed of the revision went into the question of ownership of the musical instruments. Ext. P1 is a document produced by the present petitioner in the Court of the Magistrate for proving the purchase of the musical instruments. What is stated in Ext. P1, according to the learned Magistrate as well as the revisional Court, is that Pw5 Nirappel Scaria purchased musical instruments for a total consideration of Rs. 3,500/-. Ext.P1 is written in the letter-head of St. Mary's Musical Band, Vellada. But what the petitioner would say is that the musical instruments were purchased by him and the above-said Scaria from St. Mary's Musical B and, Vellada. The revisional Court pointed out that when the petitioner was examined as Pw.l, he admitted that he used to keep the musical instruments in the house of the first respondent. The case of the petitioner is that on the date of occurrence he along with other members of the troupe took the musical instruments to the house of Chackochan for the purpose of rehearsal and after the rehearsal they were going back carrying those musical instruments. The learned Additional Sessions Judge refused to accept the above statement of Pw.l by saying that there is something unnatural in his evidence. The learned Additional Sessions Judge refused to accept the above statement of Pw.l by saying that there is something unnatural in his evidence. So, a reading of the judgment of the learned Magistrate and the order of the Additional Sessions Judge would go to show that the evidence adduced under S.244 of the Code has been appreciated in the manner it is usually done after framing charge during trial. 8. Magistrate has to consider the question whether the accused in a case has to be discharged under S.245(1) of the Code after all the evidence referred to in S.244 is taken. S.244 of the Code says that when in any warrant case instituted otherwise than on a police report, the accused appears or is brought before a Magistrate, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution. What the Magistrate is expected to take into consideration at the stage when he is considering the question whether the accused has to be discharged under S.245(1) of the Code is the evidence referred to in S.244. If the Magistrate is of the opinion that the evidence addued by the complainant under S.244 does not appear sufficient to give rise to any presumption that the accused committed the offence, what the Magistrate has to do is to discharge the accused under S.245(1). To put it differently, when the evidence adduced by the prosecution at that stage is not sufficient to make out a prima facie case, the Magistrate can discharge the accused. 9. In S.245(1) of the Code. It is stated that discharge under that clause can be made after taking into account all the evidence referred to in S.244 of the Code. That does not mean that all the evidence that the complainant intends to produce in the case in the trial has to be adduced in the Court at the stage of giving evidence under S.244. The complainant is not expected to adduce his all evidence at that stage and he need only adduce the evidence which he thinks necessary to establish prima facie that the accused has committed the offence. The complainant is not expected to adduce his all evidence at that stage and he need only adduce the evidence which he thinks necessary to establish prima facie that the accused has committed the offence. That is a matter which the Magistrate has to take into account and the evidence has to be considered by the Magistrate on bearing in mind that the complainant need only establish a prima facie case regarding the commission of the offence and that he need not at that stage establish that the accused committed the offence. At that stage, the Magistrate cannot find fault with the complainant for not examining any witness when appreciating the materials which is placed before him by adducing evidence under S.244 of the Code. The Magistrate is not expected to say at that Stage that if the complainant had examined some other witnesses the case would have been proved by the complainant. 10. In saying in S.245(1) that taking all the evidence referred to in S.244, what is meant is that the Magistrate is expected to take all the evidence produced by the complainant at the stage of adducing evidence under S.244 of the Code. That only shows that the Magistrate cannot proceed to pass an order of discharge under S.245(1) of the Code without taking all the evidence adduced by the complainant and without considering that evidence. Taking into consideration the evidence as envisaged in S.245(1) is limited to the purpose of finding out whether a prima facie case is made out to frame charge against the accusra. The Magistrate is not expected to go further and to find out whether on the basis of the evidence adduced under S.244 of the Code what would be the ultimate result of the case after trial. It is not at all possible by looking at the materials made available by the complainant at the time of adducing evidence under S.244 of the Code to find out whether the ultimate result of the case could be conviction or acquittal. The materials available at that stage would be appreciated by the Magistrate in the light of the fact that the complainant will be getting opportunity to adduce more evidence after framing of the charge. S.246(6) of the Code says that the evidence of any remaining witnesses for the prosecution shall be taken after the charge has been made. 11. The materials available at that stage would be appreciated by the Magistrate in the light of the fact that the complainant will be getting opportunity to adduce more evidence after framing of the charge. S.246(6) of the Code says that the evidence of any remaining witnesses for the prosecution shall be taken after the charge has been made. 11. The evidence adduced by the complainant under S.244 of the Code need not be appreciated by the Magistrate by applying the standard of test which has to be adopted by the Magistrate at the time of appreciating the evidence for finding out whether the accused is guilty of the offence or not at the final stage of the case. The attempt of the Magistrate at that stage has to be limited to find out whether a prima facie case is made out to proceed against the accused after framing charge. A reading of S.245 (1) would make it clear that the materials placed by the complainant before Court at the stage of adducing evidence under S.244 of the Code has to be taken into account by the Magistrate as if those materials stand un rebutted and it is in the above manner that the Magistrate would have to find out whether the evidence adduced by the complainant is sufficient to make out a prima facie case against the accused. 12. The evidence of Pws.1 and 2 stand unchallenged because they were not cross-examined. Pw.1 stated how the occurrence took place. He says that when he along with the other members of the troupe were going through the way in front of the house of the first respondent with the musical instruments, they were invited to the house of the first respondent and they went to the house. It is also stated that respondents 2 to 8 were standing there and they wrongfully restrained them, intimidated them and snatched away the musical instruments from them. The learned Magistrate as well as the Court of revision on pointing out that the witnesses would say that formerly the instruments were kept in the house of the first respondent and that rehearsals were being conducted in his house proceeded to refuse to place any reliance on the version of the witnesses that they were returning from the house of Mouwanickal Chackochan after having rehearsal in his house. The learned Additional Sessions Judge would say in the order that the question which arose for consideration was regarding the ownership of the musical instruments. Then on saying that Ext. P1 which is relied on by the petitioner as a piece of evidence to show that the musical instruments were purchased by him and one Scaria could not be said to be genuine refused to believe the case of the complainant that the respondents committed the offences. What the Additional Sessions Judge said was that Ext. P1 would not show that the complainant/ petitioner actually purchased the musical instruments. As stated earlier, a statement made by Pw. I/ petitioner that the musical instruments were formerly kept in the house of the first respondent is also one of the reasons on the basis of which the Court of revision refused to accept the case of the petitioner. During the cross-examination of Pw. 3, a photo was shown to him and Pw. 3 is stated to have admitted that the first respondent is seen along with other members of the Alphonsa Band Set. The case of the petitioner that respondents 1 to 8 committed the offences is seen to have been disbelieved by the learned Additional Sessions Judge by pointing out that the reason for the presence of the first respondent in the midst of the troupe members in the photograph is not satisfactorily explained by the prosecution. What the Additional Sessions Judge would say in the order is that since Pw. 3 admitted that rehearsal was conducted in the house of the first respondent, there was no possibility for an occurrence to have taken place on 10.3.1993 as alleged by the prosecution. In making the above observations, the learned Additional Sessions Judge lost sight of the fact that there are statements of the witnesses examined on the side of the petitioner that respondents 1 to 8 committed the offences. 13. Taking into consideration of evidence as envisaged in S.245(1), has to be limited to the purpose of ascertaining whether a prima facie case has been made out to frame charge. A critical analysis of the evidence adduced is not expected to be done by the Court at that stage. The materials available on record after the prosecution adduces evidence under S.244 has to be considered and the Court need not go into the probative value of the materials. A critical analysis of the evidence adduced is not expected to be done by the Court at that stage. The materials available on record after the prosecution adduces evidence under S.244 has to be considered and the Court need not go into the probative value of the materials. Actual rebuttal of evidence by the accused at that stage is not what is envisaged and what the Court has to do is to look into the evidence as if it were not rebutted and to see what would be the result in case evidence is not rebutted. This is not seen to have been done by the Magistrate in taking a decision to discharge the accused under S.245(1) of the Code and the Additional Sessions Judge in dismissing the revision filed challenging the order of discharge by the Magistrate. Hence, the order of the Additional Sessions Judge in revision and the order of discharge made by the Magistrate have to be set aside. The order of discharge made by the Magistrate and the order of learned Additional Sessions Judge in revision are set aside. The Magistrate will take back the case to the file of his Court and proceed to dispose of the same in accordance with law. It is made clear that the Magistrate will have to consider the evidence adduced under S.244 of the Code and to decide afresh whether charge has to be framed or not. Parties will appear in the trial Court on 30.8.1999.