Sreerangan v. The State of Kerala, represented by the Director General of Prosecution, High Court of Kerala, Ernakulam, and Govindan Sreedharan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **FRIDAY, THE 30TH DAY OF SEPTEMBER 2016/8TH ASWINA, 1938** **Crl.Rev.Pet.No. 1147 of 2005 ( ) ---------------------------------** **AGAINST THE ORDER IN CC NO.1/1999 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-III, NEYYATTINKARA DATED 04-03-2005** **----------------** **REVISION PETITIONER(S)/COMPLAINANT::** **-----------------------------------** **SREERANGAN, S/O.BHAGAVATHY PANICKER, BHAGAVATHY VILASOM BUNGALOW, MANGALATHUKONAM, ANTHIYOOR DESOM, KOTTUKAL VILLAGE.** **BY ADVS.SRI.R.T.PRADEEP SRI.V.VIJULAL** **RESPONDENT(S):** **--------------** **1. THE STATE OF KERALA, REPRESENTED BY THE DIRECTOR GENERAL OF PROSECUTION, HIGH COURT OF KERALA, ERNAKULAM.** **2. GOVINDAN SREEDHARAN,** **DEEPA VIHAR, VENGANOOR DESOM, VIZHINJAM VILLAGE.** **BY PUBLIC PROSECUTOR SRI. D. CHANDRASENAN R2 BY ADVs. SMT.LIGEY ANTONY SRI.L.MOHANAN** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 30-09-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **NS** ## **P.D. RAJAN, J.** ## **-------------------------------Crl. Rev.Pet. No.1147 of 2005 ---------------------------------Dated this the 30[th] day of September, 2016** ## **O R D E R** This revision petition is preferred by the complainant against the order in C.C. No.1 of 1999 of the Judicial First Class Magistrate Court-III, Neyyattinkara. The complainant filed the above case under Secs.447 and 379 of the Indian Penal Code ('IPC' for short). His case is that by virtue of gift deed No.1021 dated 27.05.1982 an extent of 41½ cents of land and building in Survey No.79 of Kottukal village belongs to CW1 who is the brother of the complainant. The owner of the property is working at Jawaharlal Nehru University, New Delhi. The complainant is in possession of the property. On 28.12.1998 at about 10.00 a.m., the accused and his five workers criminally trespassed into the property, cut down jack fruit trees and a coconut tree worth Rs.7,000/- and RS.1,500/respectively and removed those articles in a mini lorry without his consent or his brother's consent. They also took wire fetching a value of Rs.1,300/- thereby Crl. Rev.Pet. No.1147 of 2005 2 committed the aforesaid offences. Hence he filed the above complaint which was forwarded to Balarampuram Police under Sec.156(3) Cr.P.C for investigation. After conducting investigation, the Police referred the case. In the circumstance he filed a fresh complaint. The learned Magistrate after recording the evidence discharged the accused. Being aggrieved by that, the accused preferred this revision petition. 2. When this revision petition came up for hearing, the learned counsel appearing for the 2[nd] respondent submitted that he is no more. In the circumstance, this Court obtained a report from the Sub Inspector, Vizhijam who submitted the death certificate of the 2[nd] respondent/accused which is marked as Ext.C1. As per Ext.C1, the 2[nd] respondent died on 14.08.2007. In an appeal, after the death of the accused there is abatement of the case under Sec.394 Cr.P.C. but in a case of revision there is no such abatement. 3. Five Judges Bench of the Apex Court in **Pranab Kumar Mitra v. State of W.B. and another** Crl. Rev.Pet. No.1147 of 2005 3 **[ AIR 1959 SC 144]** considered the question of abatement in revision and observed that where the High Court thinks it fit and proper to entertain an application in revision or calls for the record suo motu then notwithstanding the death of the convicted person pending the revision it has the power to examine the whole question of the correctness, propriety or legality of the sentence of fine, which necessarily involves examining the order of conviction itself from that point of view. 4. Revisional jurisdiction is a supervisory power to correct illegality or irregularity or miscarriage of justice arising from misconception of Law which has resulted in hardship or any injury to any person. Normally the Court exercise this jurisdiction in exceptional cases when it feels that substantial injustice has been done by a Subordinate Court. If miscarriage of justice has been done by violating the fundamental rules of appreciation of evidence, High Court is justified in revising the decision of its lower courts. If a particular Crl. Rev.Pet. No.1147 of 2005 4 point is decided misconstruing the evidence on record or in the absence of evidence it is necessary for the High Court to exercise its revisional power. It is pertinent to note that the possibility of another view on a point is not a ground for interfering with the above power. 5. 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.” In warrant case where the proceedings has been instituted on a police report, the accused appears or is Crl. Rev.Pet. No.1147 of 2005 5 brought before a magistrate at the commencement of the trial, the Magistrate shall satisfy himself that he has complied with the provisions of Section 207 Cr.P.C. If the accused admitted that he received all relevant copies of the police report and other documents at the time of appearance in the trial Court, free of cost, he must be given an opportunity of being heard. Upon consideration of the police report and the documents issued u/s.173, 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. 6. Apex Court in **Century spinning & 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 Crl. Rev.Pet. No.1147 of 2005 6 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 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 Crl. Rev.Pet. No.1147 of 2005 7 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. In view of the above settled principle, I am of the view that there is no illegality in the above finding. In view of the above discussion, I am of the view that there is no merit in this revision petition and it is dismissed accordingly. Sd/- **P.D. RAJAN,** / True Copy / P.A. To Judge **JUDGE** NS/03/10/2016