Joseph John and others v. State of Kerala and Sarasamma Mathew

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE K.ABRAHAM MATHEW** **MONDAY, THE 25TH DAY OF JUNE 2018 / 4TH ASHADHA, 1940** **Crl.MC.No. 3898 of 2018** **---------------------CMP. NO.4762/2014 IN CC. NO.302/2012 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, THIRUVALLA. CRIME NO. 1541/2011 OF THIRUVALLA POLICE STATION, PATHANAMTHITTA DISTRICT.** **....** **PETITIONERS/ACCUSED 1 TO 5** **---------------------------** - **1 JOSEPH JOHN,** - **S/O.JOHN, AGED 69 YEARS, CHIRAPPARAMBIL HOUSE, PERUMTHURUTHI MURIYIL, KAVUMBHAGOM VILLAGE, THIRUVALLA-689 102.** - **2 ELIZABETH JOSEPH,** - **W/O.JOSEPH JOHN, CHIRAPPARAMBIL HOUSE, PERUMTHURUTHI MURIYIL, KAVUMBHAGOM VILLAGE, THIRUVALLA-689 102.** - **3 SANTHOSH,** - **S/O.APPUKUTTAN, AGED 42 YEARS, KIZHAKKINKARA VETTIL, MENJODUKARAYIL, AANNADU VILLAGE, NEDUMANGADU TALUK, THIRUVANANTHAPURAM-695 541.** - **4 ALAN,** - **S/O.ALEXANDER, AGED 38 YEARS, PUTHANVEEDU, PANACHIKKAVU, POOVAMKARAYIL, PAYIPPAD VILLAGE, CHANGANASSERY-686 101.** - **5 SHAJI,** **S/O. GOPALAN, AGED 38 YEARS, HOUSE NO.52, AC COLONY, POOVAMKARAYIL, PAYIPPAD VILLAGE, CHANGANASSERY-686 101.** **BY ADVS.SRI.C.HARIKUMAR** **SRI.P.S.SIDHARTHAN SRI.RENJITH RAJAPPAN.** ## **RESPONDENTS/STATE AND DEFACTO COMPLAINANT:** **------------------------------------------** **1. STATE OF KERALA, REPRESENTED BY PUBIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.** **2. SARASAMMA MATHEW,** **W/O.P.J. MATHAI, PANAKADAYIL HOUSE, MUTHOOR, THIRUVALLA-689 107.** **R1 BY SR. PUBLIC PROSECUTOR SRI.C.S. HRITHWIK.** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 25-06-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **rs. 29/06/2018.** **Crl.MC.No. 3898 of 2018 ()** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:** **ANNEXURE A1 THE TRUE COPY OF THE PLAINT IN O.S.NO.416 OF 2011 BEFORE THE HON'BLE MUNSIFF COURT, THIRUVALLA FILED BY THE 2ND RESPONDENT. ANNEXURE A2 THE TRUE COPY OF THE COMPLAINT IN CRL.M.P.NO.8844 OF 2011 BEFORE THE JFCM, THIRUVALLA FILED BY THE 2ND RESPONDENT. ANNEXURE A3 THE TRUE COPY OF THE CRIME NO.1541 OF 2011 OF THIRUVALLA POLICE STATION, PATHANAMTHITTA DISTRICT DATED 03-11-2011. ANNEXURE A4 CERTIFIED COPY OF THE FINAL REPORT FILED BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, THIRUVALLA DATED 21-03-2012. ANNEXURE A5 THE TRUE COPY OF THE ORDER IN CRL.M.C.NO.5516 OF 2013 OF THIS HON'BLE COURT DATED 02-12-2013. ANNEXURE A6 THE TRUE COPY OF THE ORDER IN CRL.M.C.NO.4977 OF 2013 OF THIS HON'BLE COURT DATED 31-10-2013. ANNEXURE A7 THE CERTIFIED COPY OF THE ORDER IN C.M.P.NO.4762 OF 2014 IN C.C.NO.302 OF 2012 OF THE JUDICIAL FIRST CLASS MAGISTRATE, THIRUVALLA DATED 04-05-2017.** **RESPONDENT'S ANNEXURES: NIL.** **//TRUE COPY//** **P.S. TO JUDGE** **rs. 29/06/2018.** **“C.R.”** ## **K.ABRAHAM MATHEW J.** ## **---------------------------------------------** ## **Crl.M.C. No. 3898 of 2018** ## **---------------------------------------------** **Dated this the 25[th] day of June, 2018** ## **ORDER** The petitioners are the accused in a case in which the allegation is that they have committed the offences under Sections 427 and 447 IPC. The proceedings are sought to be quashed in this petition filed under Section 482 Cr.P.C. 2. Earlier they had filed Crl.M.C. No.5516 of 2013 to quash the proceedings in the trial court. By Annexure-A5 order this court dismissed the Crl.M.C. giving them liberty to “move the court concerned seeking discharge.” Accordingly, they filed an application to 'discharge' them. By the impugned order the learned Magistrate dismissed the petition. The petitioners pray for quashing the final report Crl.M.C. 3898 /18 **-:2:-** and the order of the learned Magistrate. 3. Heard the learned counsel for the petitioners and the learned Public prosecutor. 4. It may be noted that the offences which the petitioners are alleged to have committed fall under Sections 427 and 447 IPC only. It is a summons case. In the impugned order the learned Magistrate has observed: “The Hon'ble High Court vide the said order has not taken note of the alleged offences in the case. As such the case was taken on file for the offences punishable u/s.447, 427 r/w 34 of IPC. The present case is a summons case. As such there is no provisions for discharge under the relevant provisions of Cr.P.C. in the summons trial under Chapter-XX of Cr.P.C. Therefore, I am unable to invoke any provision of Cr.P.C. to consider the present petition. Moreover, all the contentions taken by the petitioner in this petition could be raised at the time of trial and the petitioners have sufficient opportunity to adduce evidence on aspects raised in the present petition. Therefore, I find that the present petition Crl.M.C. 3898 /18 **-:3:-** cannot be considered at this stage and it is only liable to be dismissed.” (sic) 5. The learned Magistrate should not have made the observation that this court failed to take note of the fact that the case is a summons case and not a warrant case. 6. This court in the order passed in Crl.M.C. No.5516 of 2013 observed that the petitioners may file an application to discharge them. In the Code of Criminal Procedure the word 'discharge' appears not only in different Sections in Chapter XVIII relating to Trial Before a Court of Session and Chapter XIX relating to Trial of Warrant Cases by Magistrates but also in Section 123 in Chapter VIII relating to Security for Keeping the Peace and for Good Behaviour and two Sections in Chapter XXXIII relating to Provisions as to Bail and Bonds. Section 123 provides for discharge of a person imprisoned under Section 122. Section 442 of the Code speaks of discharge of accused from custody on execution of a bond and Section 444 speaks of discharge of sureties. When the court discharges a person, it only means that he has no Crl.M.C. 3898 /18 **-:4:-** obligation to appear before it in the said proceedings. When the presence of a witness present in the court is no longer necessary, he is discharged by the court. To discharge only means to release. When an accused is 'discharged' in a summons case on the finding that the materials relied on by the prosecution do not disclose any offence, it only means that he is released from the obligation to appear in the court in that proceedings. 7. The following observation of the Supreme Court in **Cricket Association of Bengal and Others v. The State of West Bengal and Others** (AIR 1971 SC 1925) is relevant. “Even if the order of discharge is to be treated as passed in a case where summons case procedure is to be followed, it was within the jurisdiction of the Magistrate and hence it cannot be characterized as either illegal or not justified.” ## 8. In **Kamala Rajaram v. State of Kerala** (2005 (3) KLT 617) this court has observed as follows: _“It is a summons case. Procedure prescribed under Chapter XX has to be followed. There is no question of framing any charge at the stage of S.251 Cr.P.C. There is_ Crl.M.C. 3898 /18 ## **-:5:-** _only the requirement of reading over the particulars of offence to the indictee. A formal framing of charge is not required; but certainly the particulars of offence of which he is accused must be stated to the accused and his plea has to be recorded. Notwithstanding the fact that the formal requirement of framing of a charge is not there, the section pre-supposes that the learned Magistrate must consider whether such allegations are raised which amount to an offence. If no offence is made out, then there is no particulars of offence which have to be read over to the accused and therefore proceeding cannot proceed beyond S.251 Cr.P.C.” …................... “The provisions of S. 251 read with S. 258 Cr.P.C. must necessarily be held to clothe the learned Magistrate in a case instituted on the basis of a police report with the power to discontinue proceedings at the stage of S. 251 Cr.P.C., if there be no sufficient allegations or materials to justify continuance of proceedings for an offence punishable under S.304A IPC............the learned Magistrate has, at least, in a prosecution in a summons case instituted otherwise than on a police report, the power to discontinue the proceedings at the stage of S.251 Cr.P.C. by invoking his powers under S.251 along with the powers under S.256 Cr.P.C.”_ 9. It is true that in **Thomas v. Varghese** (2008 (3) KLT 44) a learned single Judge of this court has held that in a summons trial case there is no discharge and if the conditions envisaged under Section 258 Cr.P.C. are satisfied, the court may drop the proceedings. But that case can be easily distinguished. In that case though it was a case of summons trial, the learned Magistrate posted the case for framing charge. On the basis of a document produced by the accused the learned Magistrate discharged the accused Crl.M.C. 3898 /18 ## **-:6:-** 'under Section 254 Cr.P.C.' It is in that context it was observed that in a summons case there is no discharge. If the word 'discharge' is used in a summons case, it cannot be said to be illegal. The court may use the word 'release' or 'discharge' when it finds that the proceedings cannot be continued in a summons case and consequently it drops the proceedings. 10. The learned Magistrate dismissed the application filed by the petitioners only for the reason that the case is a summons case and no discharge application can be entertained in such a case. The learned Magistrate did not consider whether the facts of the case attract any offence. Hence the order is liable to be set aside. 11. The second prayer of the petitioners is to quash the final report. That prayer cannot be granted for the simple reason that this court dismissed Crl.M.C. No.5516 of 2013 filed by the petitioners for the same relief. In the result, this Crl.M.C. is allowed in part. The impugned order is set aside and the learned Magistrate is Crl.M.C. 3898 /18 **-:7:-** directed to considerer whether the facts alleged in the final report constitute any offence and if they do not, he shall drop the proceedings and release the accused. **Sd/-** ## **K.ABRAHAM MATHEW JUDGE** vps 26/6 /True Copy/ PS to Judge