High Court of KeralaSingle Judge2021-10-28Allowed; discharge orders set aside; cases to b...

Common Order in Criminal Revision Cases Nos. 1809/2018, 1810/2018, 1991/2018, 2088/2018, 2446/2018, 2723/2018, 2941/2018 and 3214/2018

Case / Petition Number:CRL.RC Nos. 1809/2018, 1810/2018, 1991/2018, 2088/2018, 2446/2018, 2723/2018, 2941/2018, 3214/2018

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P. G. Ajithkumar
Judgment Date: 2021-10-28
Court Decision / Holding: The Criminal Revision Cases are allowed. The orders of the learned Magistrate discharging the accused in the respective cases are set aside. The learned Magistrate will take back the cases on file and proceed with them in accordance with law. The respective respondents/accused will appear before the Judicial First Class Magistrate Court-III (Temporary), Kollam on 16.11.2021.
Final Disposition: Allowed; discharge orders set aside; cases to be re-registered and proceeded with; appearance date fixed.

Parties to the Case

Respondents

State of Kerala represented by the Sub Inspector of Police, Kollam City Traffic
M. Sabu S/O Madhavan
Biju S/O Anandavally Amma
Christopher John S/O John
Sajeer S/O Basheer
Subin S/O Salim
Gireesh S/O Thankappan Pillai
Shyam S/O Ushar

Legal Representation & Advocates

Counsels for Respondents

• Sri. M.C. Ashi, Public Prosecutor

Case Synopsis & Summary

This common order arises from eight connected criminal revision petitions (Cr.R.C. Nos. 1809/2018, 1810/2018, 1991/2018, 2088/2018, 2446/2018, 2723/2018, 2941/2018 and 3214/2018) brought suo motu by this Court after the Kollam Judicial First Class Magistrate-III (Temporary) disposed of a batch of cases under Section 258 Cr.P.C. cryptically, discharging accused. In 2017, by resolution of the Administrative Committee, the Court decided to initiate suo motu revisions on account of miscarriage of justice in such disposals. The court reviews the limits of the Magistrate’s power under Section 258, guided by earlier decisions Neela Lohitha Dasan Nadar v State of Kerala (2003 (1) KLT 844), Radhamany Amma v Kunju Pillai (1980 KLT 393) and Balakrishna Panicker v Thevan (1987 (1) KLT 628). The Court emphasizes that Section 258 is an enabling provision to be used only in very special and compelling circumstances where the usual procedure under Section 254 cannot be followed and the prosecution would fail due to technical defects. It warns that invocation must be reasonable and judicious and that the normal rule is that both parties have an opportunity to adduce evidence. The Court also cites Suo Motu proceedings v. State of Kerala (2019 (3) KHC 188) to stress the same principle. On that basis, the Court holds that the Magistrates' cryptic discharge orders were illegal; the revision petitions are allowed, the discharge orders set aside, and the cases are to be re-registered and proceeded with in accordance with law. The respondents/accused must appear on 16.11.2021.

Provisions of Law Cited

Section 258 Cr.P.C.Section 397 Cr.P.C.Section 401 Cr.P.C.S.15C r/w 63 of Kerala Abkari ActS.279 IPCS.185, 3(1) r/w 181 of MV ActS.160 IPC

Legal Doctrines & Maxims

Section 258 Cr.P.C. is enabling and should be invoked in peculiar and unusual circumstances; normal trial rights must be preserved; it should be exercised reasonably and judiciously.
Miscarriage of justice as a guiding concern in exercising powers under Section 258 Cr.P.C.
Normal rule that both parties have opportunity to adduce evidence; Section 258 is exceptional and not a substitute for regular proceedings.

Submissions & Arguments

Contentions of Appellants / Petitioners

There were no representations by the respondents/accused in these connected matters and the record shows submissions were made by the Public Prosecutor that the discharge orders under Section 258 Cr.P.C. were illegal and liable to be set aside; the petitions were to be considered under the Court’s suo motu revision powers.

Contentions of Respondents

The Public Prosecutor submitted that the orders discharging the accused under Section 258 Cr.P.C. were illegal and liable to be set aside; the High Court should examine the legality of these orders in the suo motu revision proceedings.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
Neela Lohitha Dasan Nadar v. State of Kerala	2003 (1) KLT 844	Positive	Cited to establish that Section 258 Cr.P.C. is an enabling provision to be used only in very special circumstances.
Radhamany Amma v. Kunju Pillai	1980 KLT 393	Positive	Cited to support the proposition that Section 258 should be used in very special and compelling circumstances.
Balakrishna Panicker v. Thevan	1987 (1) KLT 628	Positive	Cited to reinforce the view of special circumstances required for invoking Section 258.
Suo motu proceedings v. State of Kerala and Others	2019 (3) KHC 188	Positive	Cited to support the view that Section 258 can be invoked only in peculiar and unusual circumstances and not as a routine measure.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **THURSDAY, THE 28[TH] DAY OF OCTOBER 2021/6TH KARTHIKA, 1943 CRL.RC NO. 1809 OF 2018** **AGAINST THE ORDER IN ST 895/2015 OF JUDICIAL MAGISTRATE OF FIRST CLASS - III (TEMPORARY SPECIAL COURT),KOLLAM PETITIONER:** **SUO MOTU PROCEEDINGS AS PER THE RESOLUTION OF THE ADMINISTRATIVE COMMITTEE IN ITS MEETING HELD ON 18-09-2017.** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY THE SUB INSPECTOR OF POLICE, KOLLAM CITY TRAFFIC, CR. 253/2015. 2 M.SABU S/O. MADHAVAN, SREEDEVI VILASOM VEETTIL, SIVAGIRI CHERI, VARKALA VILLAGE.** **OTHER PRESENT:** **SRI. M.C. ASHI, PUBLIC PROSECUTOR** **THIS CRIMINAL REVISION CASE HAVING COME UP FOR FINAL HEARING ON 28.10.2021, ALONG WITH Crl.RC.1810/2018 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 Crl.Rev.Case No.1809 of 2018 & connected cases ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **THURSDAY, THE 28[TH] DAY OF OCTOBER 2021/6TH KARTHIKA, 1943 CRL.RC NO. 1810 OF 2018** **AGAINST THE ORDER IN ST 1747/2015 OF JUDICIAL MAGISTRATE** **OF FIRST CLASS - III (TEMPORARY SPECIAL COURT),KOLLAM PETITIONER** **SUO MOTU PROCEEDINGS AS PER THE RESOLUTION OF THE ADMINISTRATIVE COMMITTEE IN ITS MEETING HELD ON 18-09-2017.** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY THE SUB INSPECTOR OF POLICE, KOLLAM CITY TRAFFIC CR. 734/2013.** - **2 BIJU S/O. ANANDAVALLY AMMA, KEEZHOOTTU BIJU BHAVAN, PANAYAM CHERI, PERINAD VILLAGE.** ## **OTHER PRESENT:** ## **SRI. M.C. ASHI, PUBLIC PROSECUTOR** **THIS CRIMINAL REVISION CASE HAVING COME UP FOR FINAL HEARING ON 28.10.2021, ALONG WITH Crl.RC.1809/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 Crl.Rev.Case No.1809 of 2018 & connected cases ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **THURSDAY, THE 28[TH] DAY OF OCTOBER 2021/6TH KARTHIKA, 1943 CRL.RC NO. 1991 OF 2018** **AGAINST THE ORDER IN ST 5679/2015 OF JUDICIAL MAGISTRATE** **OF FIRST CLASS - III (TEMPORARY SPECIAL COURT),KOLLAM PETITIONER** **SUO MOTU PROCEEDINGS AS PER THE RESOLUTION OF THE ADMINISTRATIVE COMMITTEE IN ITS MEETING HELD ON 18-09-2017.** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY THE SUB INSPECTOR OF POLICE, KOLLAM WEST CR. 1420/2013.** **2 BINU S/O BABU, CHENTHALIL VEETTIL, NEAR VISHNATHUKAVU TEMPLE, PUNNATHALA CHERI, KOLLAM WEST VILLAGE.** ## **OTHER PRESENT:** ## **SRI. M.C. ASHI, PUBLIC PROSECUTOR** **THIS CRIMINAL REVISION CASE HAVING COME UP FOR FINAL HEARING ON 28.10.2021, ALONG WITH Crl.RC.1809/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 4 Crl.Rev.Case No.1809 of 2018 & connected cases ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **THURSDAY, THE 28[TH] DAY OF OCTOBER 2021/6TH KARTHIKA, 1943 CRL.RC NO. 2088 OF 2018** **AGAINST THE ORDER IN ST 4899/2015 OF JUDICIAL MAGISTRATE** **OF FIRST CLASS - III (TEMPORARY SPECIAL COURT),KOLLAM PETITIONER** **SUO MOTU PROCEEDINGS AS PER THE RESOLUTION OF THE ADMINISTRATIVE COMMITTEE IN ITS MEETING HELD ON 18.09.17.** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY THE SUB INSPECTOR OF POLICE, KOLLAM CITY TRAFFIC, CR. 2017/2014.** **2 CHRISTOPHER JOHN S/O. JOHN, PALUVILA VEEDU, OZHUKKUTHODU NAGAR - 28, MARUTHADI CHERI, SAKTHIKULANGARA VILLAGE.** ## **OTHER PRESENT:** ## **SRI. M.C. ASHI, PUBLIC PROSECUTOR** **THIS CRIMINAL REVISION CASE HAVING COME UP FOR FINAL HEARING ON 28.10.2021, ALONG WITH Crl.RC.1809/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 5 Crl.Rev.Case No.1809 of 2018 & connected cases ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **THURSDAY, THE 28[TH] DAY OF OCTOBER 2021/6TH KARTHIKA, 1943 CRL.RC NO. 2446 OF 2018** **AGAINST THE ORDER IN ST 3412/2015 OF JUDICIAL MAGISTRATE** **OF FIRST CLASS - III (TEMPORARY SPECIAL COURT),KOLLAM PETITIONER** **SUO MOTU PROCEEDINGS AS PER THE RESOLUTION OF THE ADMINISTRATIVE COMMITTEE IN ITS MEETING HELD ON 18.09.2017** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY SUB INSPECTOR OF POLICE, KOLLAM TRAFFIC, CR.2039/2012.** - **2 SAJEER,** **S/O BASHEER,CHEPPALIMUKKU COLONY,ALTHARAMOODU, KAVANAD,KANNIMEL CHERI,SAKTHIKULANGARA VILLAGE.** ## **OTHER PRESENT:** ## **SRI. M.C. ASHI, PUBLIC PROSECUTOR** **THIS CRIMINAL REVISION CASE HAVING COME UP FOR FINAL HEARING ON 28.10.2021, ALONG WITH Crl.RC.1809/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 6 Crl.Rev.Case No.1809 of 2018 & connected cases ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **THURSDAY, THE 28[TH] DAY OF OCTOBER 2021/6TH KARTHIKA, 1943 CRL.RC NO. 2723 OF 2018** **AGAINST THE ORDER IN ST 9533/2015 OF JUDICIAL MAGISTRATE** **OF FIRST CLASS - III (TEMPORARY SPECIAL COURT),KOLLAM PETITIONER** **SUO MOTO PROCEEDINGS AS PER THE RESOLUTION OF THE ADMINISTRATIVE COMMITTEE IN ITS MEETING HELD ON 18.09.2017.** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY THE SUB INSPECTOR OF POLICE, KOLLAM WEST, CR.1562/2013.** - **2 SUBIN, S/O.SALIM, KOOTTIL NORTH VEETTIL, MATHETHARA NAGAR- 41, NEAR MATHRUBHUMI OFFICE, RAMANKULANGARA,KUREEPUZHA CHERI, KOLLAM WEST VILLAGE.** ## **OTHER PRESENT:** ## **SRI. M.C. ASHI, PUBLIC PROSECUTOR** **THIS CRIMINAL REVISION CASE HAVING COME UP FOR FINAL HEARING ON 28.10.2021, ALONG WITH Crl.RC.1809/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 7 Crl.Rev.Case No.1809 of 2018 & connected cases ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **THURSDAY, THE 28[TH] DAY OF OCTOBER 2021/6TH KARTHIKA, 1943 CRL.RC NO. 2941 OF 2018** **AGAINST THE ORDER/JUDGMENT IN ST 12893/2015 OF JUDICIAL MAGISTRATE OF FIRST CLASS - III (TEMPORARY SPECIAL** **COURT),KOLLAM** ## **PETITIONER** **SUO MOTU PROCEEDINGS AS PER THE RESOLUTION OF THE ADMINISTRATIVE COMMITTEE IN ITS MEETING HELD ON 18.09.2017.** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY THE SUB INSPECTOR OF POLICE, KOLLAM WEST, CR. 2118/2015.** - **2 SHYAM,** **S/O.USHAR, MOOLANKARA PADINJATTATHIL, KANNIMEL NAGAR-59, SAKTHIKULANGARA.** ## **SRI. M.C. ASHI, PUBLIC PROSECUTOR** **THIS CRIMINAL REVISION CASE HAVING COME UP FOR FINAL HEARING ON 28.10.2021, ALONG WITH Crl.RC.1809/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 8 Crl.Rev.Case No.1809 of 2018 & connected cases ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **THURSDAY, THE 28[TH] DAY OF OCTOBER 2021/6TH KARTHIKA, 1943 CRL.RC NO. 3214 OF 2018** **AGAINST THE ORDER IN ST 5404/2015 OF JUDICIAL MAGISTRATE** **OF FIRST CLASS - III (TEMPORARY SPECIAL COURT),KOLLAM PETITIONER** ## **SUO MOTU** **PROCEEDINGS AS PER THE RESOLUTION OF THE ADMINISTRATIVE COMMITTEE IN ITS MEETING HELD ON 18.09.2017.** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY THE SUB INSPECTOR OF POLICE, KOLLAM WEST, CR. 282/2013.** - **2 GIREESH,** **S/O. THANKAPPAN PILLAI, KAYALVARATHU PUTHUVAL PUTHEN VEEDU, NEAR MAHALAKSHMI KAVU, THRIKKADAVOOR, CHERI, THRIKKADAVOOR VILLAGE.** ## **OTHER PRESENT:** ## **SRI. M.C. ASHI, PUBLIC PROSECUTOR** **THIS CRIMINAL REVISION CASE HAVING COME UP FOR FINAL HEARING ON 28.10.2021, ALONG WITH Crl.RC.1809/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 9 ## Crl.Rev.Case No.1809 of 2018 & connected cases ## **COMMON ORDER** ## **[Criminal Revision Case Nos.1809, 1810, 1991, 2088, 2446, 2723, 2941 and 3214 of 2018]** ## **Dated this the 28[th] day of October, 2021** The Chief Judicial Magistrate, Kollam informed the High Court that the Judicial First Class Magistrate Court-III (Temporary), Kollam, during the period from 01.08.2016 to 31.12.2016, disposed of several cases pending on the files of that court invoking the powers under Section 258 of the Cr.P.C. On 18.09.2017, the Administrative Committee of this Court considered the matter and resolved to initiate steps to register _suo motu_ criminal revision cases as provided under Sections 397 and 401 of Cr.P.C., finding that there occurred miscarriage of justice in adopting such a procedure for disposing of the cases. Consequently, these Criminal Revision Cases were registered. 2. The following are the details of the cases regarding which these Criminal Revision Cases have been instituted: **Cr.R.C.No. S.T.No. Offences punishable** Cr.R.C.No.1809/2018 S.T.No.895/2015 S.279, IPC 10 Crl.Rev.Case No.1809 of 2018 & connected cases |Cr.R.C.No.1810/2018|S.T.No.1747/2015|S.279,IPC| |---|---|---| |Cr.R.C.No.1991/2018|S.T.No.5679/2015|S.15C r/w 63, Kerala Abkari Act| |Cr.R.C.No.2088/2018|S.T.No.4899/2015|S.279 IPC, S.185, 3(1) r/w 181 of MV Act| |Cr.R.C.No.2446/2018|S.T.No.3412/2015|S.279 IPC, S.185, 3(1) r/w 181, 146 r/w 196 of MV Act| |Cr.R.C.No.2723/2018|S.T.No.9533/2015|S.15C r/w 63 of Kerala Abkari Act| |Cr.R.C.No.2941/2018|S.T.No.12893/2015|S.15C r/w 63 of Kerala Abkari Act| |Cr.R.C.No.3214/2018|S.T.No.5404/2015|S.160 IPC| 3. On going through the proceedings sheet in each of the said cases, it is seen that the learned Magistrate passed orders under Section 258, invariably, by cryptic orders; although there is difference in the words used, in purport, to the effect that “accused is discharged under Section 258, Cr.P.C.”. 4. Heard the learned Public Prosecutor Sri.M.C.Ashi. There was no representation for the respondent(s)/accused. The learned Public Prosecutor submitted that the orders in 11 ## Crl.Rev.Case No.1809 of 2018 & connected cases question are illegal and liable to be set aside. 5. This Court considered contours of the powers of a Magistrate while acting under Section 258 of the Cr.P.C. in **Neela Lohitha Dasan Nadar v. State of Kerala [2003 (1)** **KLT 844]** and held that it is an enabling section and is one to be applied in very special circumstances. The Court after referring to the decisions in **Radhamany Amma v. Kunju Pillai [1980 KLT 393]** and **Balakrishna Panicker v. Thevan [1987 (1) KLT 628]** , further held that Section 258 Cr.P.C. is intended to be applied only in very special and compelling circumstances, which make it difficult or impossible for the Magistrate to proceed in the usual way by taking evidence as provided in Section 254 of the Code. Needless to say that the power under Section 258 Cr.P.C, shall be exercised reasonably and judiciously. It should not be forgotten that the normal rule is that both parties do get the opportunity to adduce evidence and the court gives its verdict on the guilt or innocence of the accused based on the evidence in the case. The court may invoke Section 258 12 ## Crl.Rev.Case No.1809 of 2018 & connected cases Cr.P.C. in a case where the allegations against the accused, even accepting them as true, do not constitute an offence or on being satisfied that there exists serious defects in the prosecution case which go to the root of the matter, thereby rendering further proceedings rather impossible or futile. The power to stop the proceedings at any stage has to be sparingly used and that too in exceptional or unusual circumstances. 6. Earlier, legality of the orders of the Magistrate discharging accused in another batch of cases of similar nature was considered by this Court in _**Suo motu**_ **proceedings as per the resolution of the Administrative Committee in its meeting held on 18.09.2017 v. State of Kerala and Others [2019 (3) KHC 188]** . The view taken was “Section 258 can be invoked only in peculiar and unusual circumstances in cases, wherein no _prima facie_ case is made out against the accused or when the accusation does not actually constitute an offence or for the reason that the prosecution is bound to fail on account of a technical defect. 13 ## Crl.Rev.Case No.1809 of 2018 & connected cases For the reason that the accused had absconded or that despite the initiation of coercive proceedings, his presence could not be secured is no reason to invoke Section 258 of the Cr.P.C. From the proceedings sheet, it does not appear that the learned Magistrate had made any genuine endeavour to secure the presence of the accused by exhausting the provisions under the Code. The order is laconic and is not supported by any reason. The learned Magistrate has exceeded in its powers in invoking provisions of Section 258 of the Code and hence, cannot be sustained, the same being illegal and irregular.” 7. Similar are the situations in these cases as well. Having considered the matter in detail, I am of the view that there is no reason to take a different view from the decision rendered in _**Suo motu**_ **proceedings** (supra). Accordingly, the Criminal Revision Cases are allowed. The orders of the learned Magistrate discharging the accused in the respective cases are set aside. The learned Magistrate will take back the cases on file and proceed with in 14 Crl.Rev.Case No.1809 of 2018 & connected cases accordance with law. The respective respondent(s)/accused will appear before the Judicial First Class Magistrate Court-III (Temporary), Kollam on 16.11.2021. **Sd/-** **P.G. AJITHKUMAR, JUDGE** dkr