Kamarqj and 4 Others vs Nehru

N. Arumugbam, J.—The admission of this revision is sought for against the order passed by the learned Judicial Magistrate No. VI, Salem, in Crl.M.P. No. 230/95 in C.C. No. 324/94 dated 25.5.1995 filed u/s 245 of the Code of Criminal Procedure by the Petitioners, who are the accused, praying for their discharge for the offence alleged to have been committed by them in the private complaint.

The Respondent herein by name Nehru was alleged to have been beaten by all these Petitioners at about 12 p.m. on 9.6.1991. When he was sitting in front of his house, the third Petitioner indulged in abusing him in filthy language and while he was questioning he brought the other four accused altogether and consequently the second Petitioner cut the Respondent with Koduval on his head and caused a bleeding cut injury. Having the Respondent caught hold of by the third and fifth Petitioners, the fourth Petitioner and the 1st Petitioner beat the Respondent upon his left with followed by die fifth Petitioner beating him with'' wooden reaper on his right shoulder. As the neighbors approached them, all the Petitioners took to their heels with their weapon in their hands. While they were doing so, some of them fell down, however, they made good of their escape. The Respondent was brought to the Government hospital and got admitted and treatment was given. On die next day, at the Government Hospital, he was examined by Pallappatti police and a case in Crime No. 505/91 was registered. It was alleged, since the police were inimical towards the Respondent, they had not investigated the case properly but however, a false case had been foisted against him. Therefore, a private complaint against the Petitioners for the offences under Sections 147, 148, 323, 324 and 341 I.P.C. has been filed before the learned Judicial Magistrate by the Respondent which however was sent to the police, u/s 156(3) of the Code of Criminal Procedure for investigation. As the police had not completed the investigation nor filed any report nor examined any witnesses, the Respondent is compelled to file this private complaint u/s 200, Code of Criminal Procedure

On recording the sworn statement given by the Respondent and having been satisfied with the prima facie case, the learned Magistrate has issued process to all the Petitioners herein and accordingly they entered their appearance. This was followed by die examination of further witnesses as contemplated by the Code of Criminal Procedure and accordingly, two more witnesses were examined. At this stage, a petition u/s 245, Code of Criminal Procedure was filed praying for the discharge of all the accused on the basis of some reliance placed upon the evidence of a doctor examined in another case.

Having given the opportunity to both sides who were repudiating their contentions respectively, the learned Judicial Magistrate has come to the conclusion that the alleged defense of alibi projected on behalf of the first two Petitioners on the basis of the evidence given by the doctor in another case and the total denial specifically projected on behalf of the remaining three Petitioners can be gone into after recording of the entire evidence by and on behalf of the complainant and acceding the prayer for discharge at this stage cannot be possible. Holding so, the learned Magistrate has passed the impugned order rejecting the prayer for discharge. Aggrieved at this, the present revision was filed and the admission was sought for. On ordering notice of motion, the Respondent entered appearance through the Bar. Accordingly, I have heard both today.

It is, in this context, the only question remains to be seen is whether the impugned order passed by the learned Judicial Magistrate is vitiated with any illegality or impropriety. Section 244 of the Code of Criminal Procedure in Chapter XIX reads like this:

Evidence for prosecution. - (1) 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.

(2) The Magistrate may, on the application of the prosecution, issue summons to say of its witnesses directing him to attend or to produce any

document or other thing.

When accused shall be discharged:

(1) If, upon taking all the evidence referred to in Section 244, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrequited, would warrant his conviction, the Magistrate shall discharge him.

(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.

A combined reading of Sections 244 of 245 of the Code of Criminal Procedure makes it very clear mat the earlier one is the genesis to be followed in procedure and the latter one is species of which the two stages have been provided by the legislature empowering the Magistrate to use his discretionary power. It is, thus the two sections are containing enabling provisions which gives overall power vested with a Magistrate to take all such evidence as may be produced in support of the prosecution viz., the complainant who may voluntarily appear with the witnesses or at his request by issuing process to such of the witnesses. If that is completed and fulfilled by taking all such evidence not in piecemeal however, on a consideration of the same in its entirety for the reasons to be specifically recorded for identification of no case against the accused, then the Magistrate is vested with the power to discharge the accused at the first instance under sub-Clause (1) of the latter section. If not, the Magistrate shall impliedly proceed with the case. This however, does not mean or limit the power of the learned Magistrate to discharge the accused at any previous stage or during the pendency of the trial or enquiry to discharge the accused when the charges framed against the accused are found groundless and that is what has been embodied in Sub-section (2) of the latter section. Therefore, the discharge of the accused during the process of the trial by the learned Magistrate has been empowered and provided by the above provision of law only on fulfilling the two ingredients viz., taking of such evidence produced by the prosecution or on behalf of the complainant and if the learned Magistrate found that the charge was totally groundless, then he can exercise his power above referred at any stage. On no other circumstances, the order of discharge can be prayed or ought to have been granted by the Magistrate otherwise.

If the legal ratio spelt out clearly, as above referred is understood with reference to the facts of the instant case, it was the finding of the learned Magistrate that all the evidence to be adduced by and on behalf of the complainant is on the half way viz., three witnesses alone were examined and the rest were yet to he examined. It was for this reason, perhaps the learned Magistrate has come to the conclusion that it is too premature at this stage to come to a conclusion of a groundless charge or no case made out against the accused-Petitioners. of course, it is true that the defense and main ground relied on is one; of alibi for some accused and for the rest total denial. In this context, the overall assessing and canalizing of the entire evidence produced by and on behalf of the complainant has become necessitated to implement the above legal ratio and as was rightly and justifiably held by the learned Magistrate merely on the basis of an evidence given by a doctor in another case cannot at all be a ground to Accede the prayer requested. It is always open for the. Petitioner/accused in this case raise the defense of alibi and the total denial of their complicity in the crime as well and get it fully adjudicated during the trial. But the prayer for discharges being asked for at this stage cannot at all be accepted for the well reasoning given by the learned Judicial Magistrate in the impugned order.

It is stated that the trial of die above case is going on. Under such circumstances, I find no ground to admit this revision. However, for the compliance of the above direction, I hereby direct the learned Magistrate to proceed with the trial and dispose the case in accordance with law as expeditiously as possible in the light of the observations given above.

In the result, the revision at this admission stage is dismissed.