K.C. Radhakrishnan vs Dinesh

Padmini Jesudurai, J.—The present revision by the complainant, who had instituted a private complaint against the respondent for an offence under S. 325, I.P.C., is directed against the order of discharge under S.245(1), Crl. P.C. passed therein by the 9th Metropolitan Magistrate, Madras.

The facts giving rise to the present revision briefly are as follows : The petitioner tiled a private complaint before the learned Magistrate on the allegation that on 29-10-1980 at about 11.30 a.m. the respondent herein fisted him, as a result of which, his left ear was torn and his teeth dislocated, thereby making out an offence punishable under S.325. I.P.C. Originally the petitioner had given a complaint to the concerned police who registered it in Crime No. 1252 of 1980 and after investigation had referred the case as a mistake of fact. A private complaint had therefore been filed.

The learned Magistrate, after taking sworn statement of the petitioner, took the complaint on file as C.C. No. 1529 of 1981 for an offence under S.325, I.P.C. and issued process to the respondent. After the respondent entered appearance, the petitioner examined himself as P.W. 1, and his servant at P.W. 2, to corroborate his testimony regarding the occurrence, P.W. 3, a police officer who recorded his complaint and investigated into the case and also P.W. 4, Medical Officer, who had examined him and had issued the wound certificate. He also had marked Exs.P1 and P2 on his side. The prosecution witnessess were cross-examined by the respondent and he filed Exs.D1 and D2 on his side. The learned Magistrate, after recording the evidence under S.244, Crl.P.C, found that there was no prima facie case against the respondent to warrant the framing of a charge and passed the impugned order discharging the respondent under S.245(1), Crl.P.C. The present revision is directed against the above order of discharge.

The petitioner appeared in person and made his submissions. According to him, it was not open to the learned Magistrate at that stage to go deep into the evidence, meticulously analyse them as a court is required to do at the conclusion of the trial and give a verdict believing or disbelieving the prosecution case. Under S.245(1), Crl.P.C, the court is merely called upon to have a superficial view on the evidence to find out whether there was a prima facie case against the accused, which if unrebutted would end in a conviction. In the instant case, the learned Magistrate had embarked upon a very detailed analysis of the evidence of P.Ws.1 and 2, decided the same on the basis of trivial and apparent contradictions and concluded that the evidence adduced by the prosecution was false. According to the petitioner, there was a prima facie case to warrant the framing of a charge against the respondent. According to him, this Court, though its powers under revisional jurisdiction on the move of a private party, are severely restricted, should interfere since the court below had exceeded its jurisdiction while acting under S.245(1), Crl.P.C. The petitioner has also placed reliance upon certain decisions in support of his contention, which I shall refer to at a later stage.

Per contra, Miss O.K. Sridevi, Learned Counsel for the respondent, contended that it was open to the court below, acting under S. 245(1) Crl.P.C. to analyse the evidence to some extent and the evidence of P.Ws.1 and 2 had to be analysed and decided in the background of the civil dispute existing between the petitioner and the respondent and the present complaint had been engineered to cover up and explain the injuries inflicted by the petitioner on the respondent. On such analysis, the court below was quite justified in holding that there was no prima facie case warranting framing of a charge. In this connection, the Learned Counsel relied on a decision of the Supreme Court in Ratilal Bhanji v. State of Maharashtra 1978 L.W. Crl. 70 (S.N.) : AIR 1979 S.C. 94.

The question that arises for consideration in this case is whether the order of discharge passed by the court below is illegal or improper, calling for interference by this Court under its revisional jurisdiction?

No doubt, the respondent is the nephew of the petitioner. There appears to be some civil dispute between them. The Civil dispute could have formed the motive for the criminal assault and it could also have formed the basis for a false or exaggerated allegation made by one against the other. However while acting under S. 245(1) Crl.P.C, all that the court is called upon to do is to find out whether there is a prima facie case against the accused warranting framing of a charge, and for this, the evidence is not to be minutely scanned in the light of the probabilities. This provision is intended only to filter frivolous private complaints and to protect the accused from harassment.

In the instant case, we have the evidence of P.W. 1, that on the date of occurrence, i.e., 29th October, 1980, at about 11.30 a.m. the respondent had assaulted P.W. 2 who is the servant of the petitioner. When the petitioner came down from the upstairs, the respondent is said to have fisted the left ear of the petitioner, as a result of which, a portion of the ear was torn. The petitioner has also stated that as a result of the fisting, two of his teeth were broken. It is his further evidence, that he had to undergo medical treatment. This version of the petitioner is corroborated by the evidence of P.W. 2. It is also in evidence that at that time, the petitioner had taken out a crowbar and had assaulted the respondent. The Medical Officer, P.W. 4, attached to the Royapettah Hospital, to whom the petitioner had been referred to by the police, had examined the petitioner and had found a portion of the left ear pinna missing. According to him, the surface of the injury was for about 2x2 cm. The petitioner was referred to the Duty Assistant Surgeon and Ex. P2 was the wound certificate issued by him. P.W. 3, the police officer, attached to the police station had recorded a statement from P.W. 1 which he registered in Crime No. 1252 of 1980. He took up the investigation and seized the blood stained clothes of P.W. 1, and sent them to court. Later, after investigation, he referred the case as a mistake of fact. This is the evidence that has been adduced by the complainant in support of his private complaint.

The learned Magistrate, after considering the materials placed before him, has given a finding that in view of certain discrepancies between the evidence of P.W. 1 and 2, regarding the place where the respondent was assaulted and the place from where the crowbar was brought the version put forward by the petitioner was not true. The learned Magistrate has further held that the evidence of P.W. 1 could not be accepted, since he did not explain the injuries sustained by the respondent he having denied having caused them. In the complaint it is stated that the petitioner had caused injuries on the respondent. P.W. 2 has stated that the respondent sustained injuries at the hands of the petitioner, P W. 4, the Medical Officer, examined on behalf of the complainant, bas stated that the respondent had also sustained injuries, as mentioned in Ex. D2. It could not be laid down as a hard and fast rule that in each and every case, the prosecution is called upon to explain every injury on the accused. Even if there was no explanation for the injuries sustained by the accused person it would lead to adverse inference against the prosecution at the time when the evidence as a whole is being analysed for the purpose of finding out whether the prosecution case has been proved beyond reasonable doubt or not. The failure to offer explanation may lead to the inference that the prosecution has not come forward with the genesis of the occurrence or that the evidence could not be characterised as trustworthy or that the accused would be entitled to the right of private defence. These are all inferences, which could be made only at the stage, when a final assessment of the entire evidence is made. At the time, when the court is to consider whether there is prima facie material for framing a charge, these fine questions could not be gone into. The learned Magistrate has even gone to the extent of considering fact of the police referring the complaint preferred by the petitioner, as a ground for holding that no prima facie case has been made out for framing a charge.

Reference may usefully made to a decision of the Supreme Court in Mahant Abhey Dass Vs. S. Gurdial Singh and Others, , wherein a complaint for offence under Ss. 447, 379 and 428, read with S.34, I.P.C., had been dismissed on the finding that even if the allegations were taken, they did not disclose the commission of any offence and that the charges against the accused were groundless. Setting aside the above order of discharge, the Supreme Court has observed :

We are unable to appreciate this conclusion of the learned Judge. If the allegations are true, there is no doubt that the accused have committed the offence charged against them: Of course, it is another matter if the allegations are ultimately, proved not to be true.

In a recent decision in R.S. Nayak Vs. A.R. Antulay and Another, , the Supreme Court has again reiterated the same position of law holding that notwithstanding the difference in the position of S 227 and S.245, Crl.P.C. there is no scope for doubt that the stage at which the Magistrate is required to consider the question of framing of charge under S.245(1) is a preliminary one and the test of prima, facie case has to be applied and that in spite of the difference in the language of the different sections, the legal position is that if the trial court is satisfied that a prima facie case is made out, charge has to be framed.

On the other hand, the Learned Counsel for the respondent places reliance upon a decision of the Supreme Court in Ratilal Bhanji v. State of Maharashtra 1978 L.W. Crl. 70 (S.N.) : AIR 1979 (S.C.) 94. That was a case wherein the trial court, after initially framing charges in a warrant case, instituted on a complaint, later deleted some of the charges and discharged some of the accused against whom charges were so deleted. Under those circumstances, the Supreme Court observed that after framing charges, reversing back to S.245(1) was not possible and there could only be an acquittal after recording the entire evidence adduced by the prosecution. The above decision is not applicable to the facts of the instant case.

From the principles laid down by the Supreme Court in the decisions referred to in paragraph 9 above, it is clear that when there is a prima facie case the court has to frame charges. Considerations, like failure to explain the injuries, on the accused, opinion of the investigating agency, minor discrepancies, in the evidence cannot come into play at all. It is true the revisional powers of the courts are severely restricted. Yet, the order of the court below having been made beyond the scope of the powers conferred under S.245(1), Crl. P.C., suffers from a manifest illegality calling for interference by this Court under the revisional jurisdiction.

In the result, the revision is allowed the order passed by the learned Magistrate is set aside, and the matter is remitted to the court below, for proceeding further in accordance with law. It is made clear that while disposing of the matter, the court below will not be influenced by any observation made by this Court in this order.