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2020 DIGILAW 292 (KER)

Rahmath d/o. Muhammed Idris v. State Of Kerala

2020-03-09

T.V.ANILKUMAR

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JUDGMENT : A warrant case instituted on private complaint was disposed of by the learned magistrate in C.C.No.257/1999 under section 256(1) of the Code of Criminal Procedure 1973 (for short, the ‘CrPC’) by an order of acquittal which is challenged in this appeal by the aggrieved complainant. 2. The complaint was filed against three accused alleging commission of offences punishable under Sections 192, 193, 196 465, 468, 471 read with Section 34 of the Indian Penal Code (for short, the ‘IPC’) and the order of acquittal came to be passed at the stage of pre-charge enquiry under Section 244(1) of the CrPC when the appellant was admittedly absent. The learned Magistrate found that the appellant deliberately absented from the proceeding and did not show any interest in continuing prosecution despite the adjournment of the case a number of times for her examination and evidence. 3. The contention advanced by the learned counsel for the appellant is that the impugned order is perverse and illegal for the simple reason that the learned Magistrate lacked power to acquit since Section 256(1) did not extend to warrant cases instituted otherwise than on police report and the said power under the Section was confined exclusively to summons cases as provided in Chapter XX of the CrPC. It is also submitted that absence of the complainant in the proceeding on the date of acquittal was not deliberate and wilful and in any case, no provision other than Section 249 is envisaged by the CrPC in such a situation for premature termination of a warrant case instituted on private complaint at the stage of commencement of enquiry under Section 244(1). But Section 249 too cannot, it is submitted, apply to the case on hand since the offences in question belong to a different class. 4. The learned counsel for the accused fairly conceded that Section 256(1) was wrongly invoked by the learned Magistrate overlooking the fact that the provision applied only to summons cases. He submitted that Section 249 too was not within the reach of the learned Magistrate since the offences in question did not match the category of offences covered by the provision. The learned counsel for the accused fairly conceded that Section 256(1) was wrongly invoked by the learned Magistrate overlooking the fact that the provision applied only to summons cases. He submitted that Section 249 too was not within the reach of the learned Magistrate since the offences in question did not match the category of offences covered by the provision. Yet he sought to sustain the impugned order as if it were passed under Section 245(2), contending that owing to the wilful abstinence of the appellant from the proceeding, the learned Magistrate was lawfully empowered to order discharge of the accused by holding the charge against him to be groundless. 5. The short but thought provoking question that arises for consideration before me is whether the unjustified absence or non participation of complainant in a warrant case instituted on private complaint could be taken as a ground by the Magistrate for discharging the accused at the stage of commencement of pre-charge enquiry invoking Section 245(2), when the offences alleged against them do not fall within the category mentioned in Section 249. 6. The offences in the case on hand are non compoundable and are mostly cognizable also. An acquittal due to the absence of complainant in the proceeding is sanctioned by Section 249 only when the offences alleged against accused are either non cognizable or compoundable. It is enough if either of these two conditions in the Section exists in a case. Section 249 does not demand that both of the conditions should co-exist for a Magistrate to exercise his discretionary power to discharge the accused when he finds complainant’s abstinence from the proceeding to be unjustified. 7. When a warrant case on private complaint does not relate to the category of offences mentioned in Section 249, then the lone provision in CrPC which Magistrates usually fall back upon in such a situation seems to be Section 245(2). No specific provision appears to have been made in the CrPC for the purpose. Magistrates do not also have ancillary or auxiliary powers also since CrPC does not confer on them such inherent powers. 8. Looking at Section 245(1) also, power under that Section to order discharge of accused emerges only after commencement of an enquiry under Section 244(1) and consequential satisfaction of the Magistrate that evidence is not worth framing a charge. Magistrates do not also have ancillary or auxiliary powers also since CrPC does not confer on them such inherent powers. 8. Looking at Section 245(1) also, power under that Section to order discharge of accused emerges only after commencement of an enquiry under Section 244(1) and consequential satisfaction of the Magistrate that evidence is not worth framing a charge. Moreover, this Section does not contemplate the discharge of accused on account of default of appearance of the complainant but only postulates an adjudication on merits in the presence of or with the participation of the complainant. 9. Section 245(2) on the other hand applies to a stage when pre-charge enquiry under Section 244(1) is yet to commence. It reads as follows: “245.When accused shall be discharged.- (1) xxx xxxx xxx (2) Nothing in this Section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless. (3) xxx xxxx xxx” The power under the Section is said to be exercised by the Magistrate when he considers the charge against the accused to be groundless. The expression ‘charge’ used in the Section if understood in the context of Sections 200, 202 to 204 of the CrPC, means the accusation put forth in the complaint which survives the prima facie test of sufficiency of grounds made out for proceeding against the accused. The accused is not bound by the evidence recorded by the Magistrate in the proceeding under the aforesaid provisions since it is collected in his absence and has therefore, on appearance before the Magistrate pursuant to issue of process, the right and opportunity under Section 245(2) to show that the charge on which he was summoned to the court has no foundation on facts and law and is groundless. The charge on which he was summoned can be shown by him to be groundless owing to many of the situations arising in each case. When the complaint suffers for want of requisite sanction for prosecution or from legal incompetency of the complainant to lodge the complaint or from lack of materials making out an offence, the charge against the accused can be held to be groundless. When the complaint suffers for want of requisite sanction for prosecution or from legal incompetency of the complainant to lodge the complaint or from lack of materials making out an offence, the charge against the accused can be held to be groundless. In all these cases, it is obvious that the object of Section 245(2) is by all means to protect the accused against false and vexatious prosecutions and institution of complaints which suffer from legal Infirmities. If there are factual and legal grounds available for exercise of power under Section 245(2), the Magistrate is bound to pass an order on merits discharging the accused after giving the complainant and accused opportunities of being heard. This opportunity of hearing, however, does not take in the right of the complainant to adduce evidence at that stage. 10. But the question here for determination is slightly different and is as to whether a private complaint can be terminated by discharging the accused on the ground of absence of complainant at the stage of commencement of enquiry under Section 244(1), when there are no such factual and legal grounds for holding the charge against the accused to be groundless. 11. The plain words used in Section 245(2) and the literal interpretation thereof do not specifically empower a Magistrate to discharge an accused for complainant’s wilful abstinence from the enquiry, nor does the provision contain any specific words denying such a power to the Magistrate. What, therefore, matters is the legislative intention to be read from the provision keeping in view the context in which and the object for which it was enacted in the CrPC. It is clear from the section itself that the condition precedent for the exercise of power under the Section is the satisfaction of the Magistrate that the charge against the accused is groundless. 12. The expression ‘charge’ in Section 245(2) must, however, be understood to carry a different facet of meaning also when it is construed in the background of the need for enquiry insisted by Section 244(1) calling upon the prosecution to adduce evidence and prove the accusation. It implies a proposed charge as well, yet to be formulated based on the conduct of enquiry under Section 244(1). It implies a proposed charge as well, yet to be formulated based on the conduct of enquiry under Section 244(1). A complainant seeking to formulate a charge against accused is bound to adduce evidence in support of his case at the stage of pre-charge enquiry since evidence already recorded by the Magistrate under Sections 200 and 202 is not admissible in evidence nor binding on the accused. If the complainant does not appear and usher in necessary materials in support of accusation, framing of the charge proposed against the accused in such a case is beyond one's comprehension and the proceeding itself will be in no position to survive for any longer. It will have only to be terminated. No prudent complainant could yet hope the prosecution to continue for any good purpose despite his neglect to proceed with the case. None of the provisions in Chapter XIX of the CrPC either expressly or impliedly postulates continuance of a meaningless prosecution in such a context. On the other hand, if the prosecution is allowed to continue giving a different interpretation of law in the context, it would only lead to the harassment and oppression of the accused. 13. In my opinion, neglect of the complainant to proceed with the enquiry and adduce evidence must be reckoned by the Magistrate to be a situation where the complainant lacked necessary materials in support of accusation and therefore the proposed charge is groundless. In short, what emerges from my discussion is that the Magistrate has necessary discretion under Section 245 (2) of the CrPC to discharge the accused in a warrant case instituted on private complaint when he is satisfied that the complainant has neglected to participate in the pre-charge enquiry and failed for no good reasons, to adduce evidence requisite for formulating a charge against the accused. 14. The proceedings in C.C.No.257/1999 reveal that both the appellant and accused had sought adjournments for a number of times and therefore itself, I am of the view that none of them can find fault with each other. Having considered the entirety of conduct of the parties, I hold the matter should go back to the Magistrate so that the appellant may be enabled to proceed with pre-charge enquiry under Section 244(1). Having considered the entirety of conduct of the parties, I hold the matter should go back to the Magistrate so that the appellant may be enabled to proceed with pre-charge enquiry under Section 244(1). It was pointed out by the learned counsel for the respondents that the complaint itself is not maintainable under law and for that reason alone, they are entitled to an order of discharge under Section 245(2). Whatever that be, in any view of the matter, the impugned order of acquittal requires to be set aside and I do so. In the result, appeal is allowed setting aside the order of acquittal dated 07/03/2003 directing the learned Magistrate to proceed with pre-charge enquiry under Section 244(1) of the CrPC after giving the appellant one more opportunity and then decide the case in accordance with law after hearing both sides. If the respondents/ accused canvass any objection as to the maintainability of the complaint before the Magistrate, it shall be duly decided in accordance with the law in the light of the legal principles aforementioned. There shall be a further direction to the learned Magistrate to dispose of C.C.No 257/1999 within a period of 3 months from the date of receipt of copy of this judgment.