Research › Search › Judgment

Madras High Court · body

2021 DIGILAW 1257 (MAD)

P. Kalaikathiravan v. Balasubramanian

2021-04-01

K.MURALI SHANKAR

body2021
ORDER : K. Murali Shankar, J. 1. This Criminal Revision case is directed against the order passed in Crl. M.P. No. 6194 of 2016 in C.C. No. 226 of 2012, dated 20.01.2017 on the file of the Court of Judicial Magistrate, Sivakasi in Virudhunagar District dismissing the discharge petition filed under Section 245(2) Cr.P.C., 2. The revision petitioner is the 2nd accused in C.C. No. 226 of 2012, on the file of the Court of the Judicial Magistrate, Sivakasi. 3. During the arguments, the learned counsel appearing for the revision petitioner would submit that the case in C.C. No. 226 of 2012 is pending before the learned Judicial Magistrate Court, Sivakasi for long time for clarification and hence, this Court has called for a report from the learned Judicial Magistrate, regarding the stage of the case. The learned Judicial Magistrate has submitted a report dated 24.02.2021. 4. It is evident from the records that originally private complaint was lodged by the respondent herein before the Court of the Chief Judicial Magistrate, Virudhunagar District at Srivilliputur and the case was taken on file in C.C. No. 741 of 2005 against the three accused viz., (1) Saraswathiyammal (2) Kalaikathiravan (3) Sundararajan for the offences under Sections 454, 380 and 109 IPC, that after examination of four witnesses, the case was transferred to the Court of Judicial Magistrate, Sivakasi and the same was taken on file in C.C. No. 226 of 2012. 5. It is further evident that the death of the first accused Saraswathiyammal was ordered to be recorded on 29.06.2016. Thereafter, the revision petitioner herein has filed an application under Section 245(2) Cr.P.C., seeking discharge in Crl. M.P. No. 6194 of 2016 and the learned Magistrate, after conducting enquiry, has passed the impugned order on 20.01.2017 dismissing the discharge application. Aggrieved by the said order, the second accused has come forward with the present revision. 6. Whether the impugned order, dated 20.01.2017 passed in Cr.M.P. No. 6194 of 2016 in C.C. No. 226 of 2012 on the file of the Court of the Judicial Magistrate, Sivakasi, dismissing the discharge petition is liable to be set aside? is the point for consideration. 7. 6. Whether the impugned order, dated 20.01.2017 passed in Cr.M.P. No. 6194 of 2016 in C.C. No. 226 of 2012 on the file of the Court of the Judicial Magistrate, Sivakasi, dismissing the discharge petition is liable to be set aside? is the point for consideration. 7. The learned counsel appearing for the revision petitioner would strongly contend that the learned Magistrate has held that only on completion of the evidence under Section 244 Cr.P.C., the question of framing of the charges or discharge would be decided, without knowing the fact that the discharge petition was filed after closure of the evidence on the side of the prosecution and that the learned Magistrate failed to note that all the witnesses cited in the list of witnesses were examined by the prosecution and no other witnesses was available for examination, which would suggest that the Magistrate failed to apply the judicial mind in deciding the issue. 8. A cursory perusal of the records would reveal that the contention of the revision petitioner that all the witnesses cited in the list of witnesses were examined by the prosecution and no other witness was available for examination is not true and is incorrect. The complainant has examined himself as PW. 1 and the first three witnesses cited in the list of witnesses as PW. 2 to PW. 4 respectively and the fourth listed witness was yet to be examined at the time when the above discharge petition came to be filed. 9. As rightly contended by the defacto complainant and by the learned Magistrate, when the complainant's side evidence was in progress, the discharge petition came to be filed. No doubt, the learned Magistrate by observing that only on the completion of the examination of the complainant's side witnesses and the cross examination of those witnesses, the Court has to decide as to whether the charges are to be framed and that since the complainant's side evidence was not yet completed, the Court cannot proceed to decide as to whether the charges are to be framed or not, dismissed the discharge petition. 10. 10. It is pertinent to mention that the revision petitioner has filed the discharge petition by invoking Section 245(2) Cr.P.C., No doubt, under Section 245(1) Cr.P.C., the Magistrate is empowered to pass an order for discharge, only after examination of all the witnesses of the prosecution and is not expected to pass an order after examination of the complainant and some of the witnesses only and he has to wait for the examination of all the witnesses to be produced by the prosecution. But Section 245 (2) Cr.P.C., contemplates that a Magistrate can discharge the accused at any previous stage of the case, if he considers the charge to be groundless and while exercising the power under Sub Section 2, the Magistrate is not bound to examine all the witnesses and is not expected to wait for the complainant to produce all his witnesses, but the only requirement to pass any order sub Section 2 is that that the charge must be groundless and the word 'groundless' would only mean without basis or foundation. So, the observation of the learned Magistrate that the plea of discharge cannot be considered, when the complainant's side evidence was in progress, is not proper and is very much against the provision of Section 245(2) Cr.P.C., 11. It is not in dispute that during the pendency of the present revision, charges have been framed against the accused Nos. 2 and 3. It is evident from the report of the learned Magistrate that after framing of the charges, since the Court of the Judicial Magistrate, Sivakasi was bifurcated, the present case in C.C. No. 226 of 2012 is pending on the file of the Court of the Judicial Magistrate No. I, Sivakasi. For keeping the case pending under the caption "clarification" for a long time, the learned Magistrate has submitted his explanation which reads as follows: "I humbly submit that in private complaint case after charge framing, complainant's side evidence to be recorded. By mistakenly, the witnesses were cross examined by the defence side for the evidence given by the witnesses in previous stage to that alone this case was posted for clarification." 12. It is necessary to refer Section 246 Cr.P.C., which deals with the procedure; 246. Procedure where accused is not discharged. 246. Procedure where accused is not discharged. By mistakenly, the witnesses were cross examined by the defence side for the evidence given by the witnesses in previous stage to that alone this case was posted for clarification." 12. It is necessary to refer Section 246 Cr.P.C., which deals with the procedure; 246. Procedure where accused is not discharged. 246. Procedure where accused is not discharged. (1) If, when such evidence has been taken, or at any previous stage of the case, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused. (2) The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guilty or has any defence to make. (3) If the accused pleads guilty, the Magistrate shall record the plea, and may, in his discretion, convict him thereon. (4) If the accused refuses to plead, or does not plead or claims to be tried or if the accused is not convicted under sub-section (3), he shall be required to state, at the commencement of the next hearing of the case, or, if the Magistrate for reasons to be recorded in writing so thinks fit, forthwith, whether he wishes to cross-examine any, and, if so, which, of the witnesses for the prosecution whose evidence has been taken. (5) If he says he does so wish, the witnesses named by him shall be recalled and, after cross-examination and re-examination (if any), they shall be discharged. (6) The evidence of any remaining witnesses for the prosecution shall next be taken, and after cross-examination and re-examination (if any), they shall also be discharged. 13. When the accused is not discharged under Section 245 Cr.P.C., as per Section 246(4), the Magistrate, after framing the charges and recording the plea of accused, has to adjourn the case to latter date so as to enable the accused to consider whether he wishes to cross examine the witnesses produced by the prosecution. After getting the reply of the accused, then as per Sub Section 5, the Magistrate is duty bound to recall such witnesses as per the wishes of the accused for cross examination. After getting the reply of the accused, then as per Sub Section 5, the Magistrate is duty bound to recall such witnesses as per the wishes of the accused for cross examination. After cross examination of the witnesses wished by the accused, then as per the Sub Section (b) the Magistrate has to direct the prosecution to produce other witnesses if any. 14. Considering the above provision of law, it is very clear and nothing requires to be clarified. 15. The learned Magistrate has passed the impugned order by holding that the revision petitioner was not entitled to be discharged at that point of time. As already pointed out, thereafter, during the pendency of the present revision, the learned Magistrate has framed the necessary charges under Section 246(1) Cr.P.C., which impliedly would mean that the Magistrate was of the opinion that there is ground for presuming that the accused has committed the offence. 16. It is also not in dispute that after framing of the charges, the accused have chosen to cross examine the complainant's side witnesses already examined and the same would go to show that the accused/revision petitioner had impliedly accepted the framing of the charges. Admittedly, the accused including the revision petitioner has not challenged the order of the Magistrate framing the charges. 17. Considering the above, this Court has no hesitation to hold that nothing survives for adjudication in the present revision and at the same time, considering the fact that the case is pending from 2005 onwards, this Court is of the view that necessary direction has to be issued for the early disposal of the case. 18. In the result, the Criminal Revision Case is dismissed and the learned Judicial Magistrate No. I, Sivakasi is directed to proceed with the trial of the case under Section 246 Cr.P.C., and dispose of the case within a period of three months from the date of receipt of a copy of this order. Both the parties are directed to extend their fullest cooperation for the disposal of the case within the time stipulated. Consequently, the connected Miscellaneous Petitions are closed.