Crl.Rev.Pet.No.277 of 2005

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **MONDAY, THE 27TH DAY OF JUNE 2016/6TH ASHADHA, 1938** **Crl.Rev.Pet.No. 277 of 2005 ( ) -------------------------------AGAINST THE JUDGMENT IN CC 89/2001 of JUDICIAL FIRST CLASS MAGISTRATE COURT-I, PUNALUR DATED 10-11-2004** ## **REVISION PETITIONER/DEFACTO COMPLAINANT:** **---------------------------------------** ## **CHANDRAMATHI, D/O. BHARGAVY,** **THEKKINKATTIL PUTHEN VEEDU, KURUVIKONAM, AGASTHIACODE MURI, ANCHAL VILLAGE.** **BY ADVS.SRI.G.SASIDHARAN CHEMPAZHANTHIYIL SRI.MANOJ RAMASWAMY SRI.S.VISHNU SMT.VIVEEJA RAVEENDRAN** **RESPONDENT(S)/COMPLAINANT/ACCUSED:: -----------------------------------** **1. STATE, REPRESENTED BY THE GOVERNMENT PLEADER, HIGH COURT OF KERALA, ERNAKULAM.** **2. KURYAN GEORGE, S/O. GEORGE, HOUSE NO.PMC.III/135-B, CHEMMANTHOOR MURI, PUNALUR VILLAGE.** **3. MOHANAN, S/O. SREEDHARAN, NEETHUBHAVAN, ORUNADA, MATHRA MURI, KARAVALOOR VILLAGE.** **R1 BY PUBLIC PROSECUTOR SMT. V.P. SATHI R,R2 BY ADV. SMT.RESHMI POULOSE R,R2,R3 BY ADV. SRI.T.A.UNNIKRISHNAN** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 27-06-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **acd** ## **P.D. RAJAN, J.** ------------------------------------------Crl.R.P.No.277 of 2005 ---------------------------------------------Dated this the 27[th] day of June, 2016 ## **ORDER** This revision petition is preferred by the defacto complainant against the judgment in C.C. No.89/2001 of Judicial First Class Magistrate-I, Punalur. The above case was charge sheeted by DYSP, Punalur against the accused under Section 447, 341, 354, 294(b), 506(ii) r/w.34 IPC. The charge against the accused is that on 17.12.2000 at about 6 p.m., the accused wrongfully restrained the revision petitioner on the panchayat road at Kurivikkonam Agasthyacodu, A2 caught on her both hands and dragged her, A1 wielded a chopper towards her, thereby committed the offence. DYSP, Punalur conducted investigation and laid Crl.R.P. No.277/2003 2 charge in the Judicial First Class Magistrate Court. 2. In the meantime the 1[st] accused approached this Court and preferred Crl.R.P.No.2020/2004, which was disposed of by this Court with a direction to consider the question of discharge or framing of and he was to raise those charges permitted contentions in the trial Court. Accordingly, the learned Magistrate considered the evidence during trial and discharged the accused. Being aggrieved by that, the defacto complainant approached this Court with this revision petition. 3. The revision petitioner and other women of the locality earlier lodged several petitions before the Deputy Superintendent of Police, Punalur and Women Cell, Kollam against the accused for obstructing a pathway which they were using for ingress and egress Crl.R.P. No.277/2003 3 to their property. The 1[st] accused is the owner of a rubber estate and the defacto complainant and others are residing on the other side of the pathway. The 1[st] accused and his men that the thought pathway facilitated theft of firewood and other articles from the estate, therefore they abused the defacto complainant and other women folk of the locality by using vulgar language and showing obscene signs and gesticulations while using the pathway. The 1[st] accused, his wife and the 2[nd] accused trespassed into the house premises of the defacto complainant, outraged her modesty and illegally restrained, intimidated and attempted to hurt her husband. When Police failed to take action, revision petitioner filed a complaint before the Judicial I Class Magistrate, Punalur which was forwarded to the Police for investigation under Section Crl.R.P. No.277/2003 4 156(3) Cr.P.C. On filing final report, the Magistrate took cognizance under Section 447, 341, 354, 294 (b) and 506(ii) IPC. 4. The 1[st] accused without appearing in person before the Magistrate approached the Director of Vigilance and Anti Corruption Bureau, Thiruvananthapuram to re-investigate and he filed a stay petition CMP 405/2001 before the Trial Court stating that a Re-investigation had commenced. The Judicial I Class Magistrate-I, Punalur stayed all proceedings and gave permission for further investigation. In the meantime, the revision petitioner approached this Court with Crl.M.C. No.8953/2001 and this Court issued direction to the trial court to strictly follow the decision in **State** v. **Gopakumar** [1998 (1) KLT 924]. The Deputy Superintendent, Punalur filed a Re- Crl.R.P. No.277/2003 5 investigation Report to refer chargesheet in Crime No.465/2000 and to drop the proceedings in C.C.89/2001. The trial court rejected the Reinvestigation-cum-refer- chargesheet and decided to go ahead with the proceedings on the basis of the final report submitted originally by the investigating officer by holding that the statement of CW1 to CW7 make out a prima-facie case against the accused and only their examination will reveal the real fact. In this circumstance, the 1[st] accused approached this Court and obtained a direction and the learned Magistrate discharged the accused. 5. Revisional jurisdiction has been given to High Court and Court of Sessions in order to correct illegality or irregularity or miscarriage of justice which has resulted in hardship or any injury to any person. The above Courts Crl.R.P. No.277/2003 6 exercise this jurisdiction normally in exceptional cases alone when it feels that substantial injustice has been done by its lower Courts. The above grounds are relevant and if miscarriage of justice has been done by violating the fundamental rules of appreciation of evidence, that is a good ground for revising the decision of its lower courts. 6. Section 239 and 240 of Cr.P.C. read as follows: “ **239. When accused shall be discharged.** - If, upon considering the police report and the documents sent with it under section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing. **240. Framing of charge.-** (1) If, upon such consideration, examination, if any, and hearing, 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 of the offence charged or claims to be tried.” Crl.R.P. No.277/2003 7 In warrant case where the proceedings has been instituted on a police report, the accused appears or is brought before a magistrate at the commencement of the trial, the Magistrate shall ensure himself that he has complied with the provisions of Section 207 Cr.P.C. At that time if the accused admits that he got all relevant readable copies of the police report and other documents at the time of appearance in the trial Court, free of cost, the learned Magistrate gives an opportunity to the accused of being heard. After considering the police report and the documents, if the Magistrate, after giving opportunity to the prosecution and the accused, of being heard, thinks that the charge against the accused is groundless, he shall discharge the accused after recording his reasons for so doing. 7. Apex Court in **Century spinning &** Crl.R.P. No.277/2003 8 ## **Manufacturing Co** . v. **State of Maharashtra** [(1972) 3 ## SCC 282] [1972 SCC Cri 495] held as follows: “(i) The construction and meaning of Section 251-A of Code of Criminal Procedure does not present any difficulty. Under sub-section (2), if upon consideration of all the documents referred to in Section 173 CrPC, and examining the accused, if considered necessary by the Magistrate and also hearing both sides, the Magistrate considers the charge to be groundless, he must discharge the accused. This Sub-section, has to be read along with sub-section (3), according to which, if after considering the documents and hearing the accused, the Magistrate thinks that there is ground for presuming that the accused has committed an offence triable under Chapter XXI of the Code within the Magistrate's competence and for which he can punish adequately he has to frame in writing a charge against the accused. Reading the two sub-sections together, it clearly means that if there is no ground for presuming that the accused has committed an offence, the charge must be considered to be groundless, which is the same thing as saying that there is no ground for framing the charges. This necessarily depends on the facts and circumstances of each case and the Magistrate is entitled and indeed has a duty to consider the entire material referred to in sub-section (2) (ii) From the plain language of Section 251-A of Code of Criminal Procedure or on its judicial interpretation or on any recognized principles of law it cannot be accepted that at the stage of framing the charges the court has not to apply its judicial mind for considering whether or not there is a ground for presuming the commission of the offence by the accused. The order framing the charges does substantially affect the person's liberty Crl.R.P. No.277/2003 9 and it is not possible to countenance the view that the court must automatically frame the charge merely because the prosecuting authorities by relying on the documents referred to in Section 173 consider it proper to institute the case. The responsibility of framing the charges is that of the court and it has to judicially consider the question of doing so. Without fully adverting the material on the record it must not blindly adopt the decision of the prosecution.” 8. The learned Magistrate in this case observed that there was no that A2 specific allegation obstructed her and caused hurt so as to move her in any direction. The revision petitioner in her cross examination has not stated that the respondents 1 and 2 did any obscene acts or songs to annoy the defacto complainant. She has also not stated anything in her complaint that the accused uttered any obscene words in or near any public place. To prove the criminal trespass, no documents were produced in the trial Court to prove the possession of the property and there was Crl.R.P. No.277/2003 10 no allegation in the complaint that she is in possession of the property. In order to prove the criminal trespass u/s.441 IPC, she has to prove that the accused entered into her property with intend to commit an offence or to intimidate, insult or annoy her in possession of such property. There was no allegation of assaults or having used criminal force against the defacto complainant intending to outrage her modesty or knowing it to be likely that he will thereby outrage her modesty. 9. While discharging the accused in a warrant case, the learned Magistrate has to apply his judicial mind and analyse the evidence before him. If the evidence shows that the charge is groundless, the Court shall discharge the accused. When a strong suspicion is found on materials which lead the Magistrate to form Crl.R.P. No.277/2003 11 an opinion about the ingredients of the offence that is sufficient to discharge the accused. On such scrutiny if it is seen that ingredients of an offence exist, that is sufficient to frame a charge. After considering the entire evidence, the Court considers that there is no ground for believing that he has committed the offence then he is bound to discharge the accused. Apex Court in **Kanti Bhadra Shah** v. **State of West Bengal** [(2000) 1 SCC 722] [1991 Cr LJ 3012] [1982 Cr LJ 1923] held as follows: “Section 239 shows that the Magistrate is obligd to record his reasons if he decides to discharge the accused. But in view of Section 240 there is no such requirement if he forms the opinion that there is ground for presuming that the accused ahd committed the offence which he is competent to try. In such a situation, he is only required to frame a charge in writing against the accused. If the trial court decides to frame a charge there is no legal requirement that he should pass an order specifying the reasons as to why he opts to do so. Framing of charge itself is prima facie order that the trial Judge has formed the opinion, upon considering the police report and other documents and Crl.R.P. No.277/2003 12 after hearing both sides, that there is ground for presuming that the accused has committed the offence concerned. Even in cases instituted otherwise than on a police report the Magistrate is required to write an order showing the reasons only if he is to discharge the accused. This is clear from Section 245. Even in a trial before a Court of Session, the Judge is required to record reasons only if he decides to discharge the accused (vide Section 227 of the Code). But if he is to frame the charge he may do so without recording his reasons for showing why he framed the charge. If there is no legal requirement that the trial court should write an order showing the reasons for framing a charge, there is no need to further burden the already burdened trial courts with such extra work. The time has reached to adopt all possible measures to expedite the court procedures and to chalk out measures to avert all roadblocks causing avoidable delays. If a Magistrate is to write detailed orders at different stages merely because the counsel would address arguments at all stages, the snail-;aced progress of proceedings in trial courts would further be slowed down. A detailed order may be passed for culminating the proceedings before them, but it is quite unnecessary to write detailed orders at other stages, such as issuing process, remanding the accused to custody, framing of charges, passing over to next stages in the trial. It is a salutary guideline that when orders rejecting or granting bail are passed, the court should avoid expressing one way or the other on contentious issues, except in cases such as those falling within Section 37 of the Narcotic Drugs and Psychotropic Substance Act, 1985. In the present case as the Metropolitan Magistrate has chosen to frame the charge, the High Court, when moved by the accused for quashment of the Crl.R.P. No.277/2003 13 charge, could have re-examined the records to consider whether the charge framed was sustainable or not. If the High Court decides to quash the charge it is open to the High Court to record the reasons thereof. The present order of the High Court is one of setting aside the charge without stating any reason. But the direction to the Magistrate to consider the materials once again and then to frame a charge for the same offence (if the Magistrate reaches the opinion that there is ground for presuming the commission of offence) is simply to repeat what the Metropolitan Magistrate had done once at the first instance. To ask him to do the same thing over again is adding an unnecessary extra work on the trial court. Be that as it may, the State has not challenged the order of the High Court. Hence the impugned order of the High Court need not be set aside. It is for the Metropolitan Magistrate to exercise his functions under Section 239 or Section 40 of the Code as he deems fit in the light of the observations made above.” The trial Court rightly appreciated the evidence adduced by the defacto complainant and discharged the accused. There is no illegality in the above finding and there is no merit in this revision petition and it is dismissed accordingly. **P.D. RAJAN, JUDGE.** acd