In Re: S. Rengaswamy and Others

Kunhamed Kutti, J.—The nine petitioners in this revision case are accused 1 to 9 in C.C. 25 of 1961 on the file of the Additional First Class

Magistrate, Virudhunagar. They were charge-sheeted before the Sub Magistrate, Virudhunagar, for offences punishable under Sections 147, 426

and 447, Indian Penal Code. But after recording the evidence of P. W. 1, the Sub Magistrate found that an offence u/s 148, Indian Penal Code

had also been disclosed against them. He there fore, submitted the records, u/s 346, Crl P. C. to the District Magistrate who, in turn, transferred

the case to the Additional first Class Magistrate, Virudhunagar. The latter took the case on file, but he found that, since the first accused was the

president of the Panchayat Board, the prosecution was not maintainable in the absence of sanction u/s 106 of the Madras Village Panchayats Act,

X of 1950. On this ending he struck out the charges framed by the Sub Magistrate and discharged the accused u/s 251-A(2), Crl. P. C. The

complainant, P. W. 1, then filed at revision petition out of which this revision arises under Sections 435 and 436, Crl. P. C. to set aside the order

of discharge. The learned District Magistrate, Ramanathapuram, allowed the petition, set aside the order of discharge and directed the Additional

First Class Magistrate to take the case on file and dispose it off according to law.

The question for consideration is whether, the order setting aside the discharge u/s 251-A (2), Crl. P. C. and directing disposal of the case is

liable to be interfered with.

I may at once state, that, for the moment I am not so much concerned with the merits of the prosecution case. I am more concerned with the

question whether the order passed by the learned District Magistrate setting aside the order of discharge is liable to objection.

The point urged by the learned Counsel for the petitioners is that since charges had been framed against them and the complainant had been

examined as P. W. 1 in support of the charge on the denial of the offence by the accused, a stage had been reached when there could only be an

order of acquittal and not of discharge and therefore, the order of the learned District Judge directing retrial after setting aside what purported to

bean order of discharge was without jurisdiction.

In support of the above contention, the learned Counsel for the petitioner relied on R. Govindaswamy Vs. The State (Circle Inspector of Police,

Madanapalli), wherein Krishna Rao, J. held, on a consideration of the relevant provisions of the Criminal Procedure Code, that effect should be

given to the plain meaning of the expression ""at the commencement of the trial"" used in Sub-Section(1) of Section 251-A and that if this is done,

there is no scope for enquiry as trial must be deemed to have commenced. He therefore, took the view that the Sessions Judge had no power to

interfere with the order of discharge u/s 251-A (2), Crl. P. C. and that if a Sessions Judge acting u/s 435 finds that a trial should be conducted on

charges in respect of which there was a discharge, the only course available to him is to report the matter u/s 438 for the orders of the High Court.

In that case, it was the Sessions Judge who had remanded the case for further enquiry. In the present case, the order of remand is made by the

District Magistrate; but this circumstance does not make any difference as to Misapplication of the principle.

R. Govindaswamy Vs. The State (Circle Inspector of Police, Madanapalli), was not followed by my learned brother Veeraswami, J. in In Re:

Pakkirisamy Pillai, . He held that the proceeding preceding an order of discharge . under Sub-Section (2) of Section 251-A, Crl. P. C. is not a trial

in the strict sense, but is only in the nature of an enquiry and the discharge resulting from it does not amount to an acquittal; so that the District

Magistrate has jurisdiction under Sections 435 and 436, Crl. P. C. to set aside an order of discharge under Sub-section (a) of Section 251-A and

remit the case for disposal afresh. Referring to R. Govindaswamy Vs. The State (Circle Inspector of Police, Madanapalli), the learned Judge

observed at p. 172 (of Mad WN Cr): (at p. 144 of AIR):

With due respect, I am unable to share that view which apparently was based more on the use of the word ''trial'' than the substance of the nature

of the proceeding. It may be that the provision for discharge under Sub-Section(2) of Section 251-A may not be decisive. What I consider to be

more important in arriving at the nature of the proceeding under the first two sub-sections of Section 25I-A is the scope and content of the

proceeding which appears to be as already indicated, of much narrower limits than even an inquiry under Sub-Sections(1) and (2) of Section 352.

I hold, therefore, that the proceeding preceding an order of discharge under Sub-Section(2) of Section 251-A is not a trial in the strict sense; but is

only in the nature of an inquiry.

In an earlier case reported in Fakruddin and Others Vs. State Police, Nirmal, , a Division Bench of the Andhra High Court consisting of Basi

Reddi and Munikanniah, JJ. had also dissented from the views expressed by Krishna Rao, J. The Bench held that an order passed under Sub-

Section(2) of Section 251-A by the Sessions Judge exercising powers u/s 436, Crl. P. C. should necessarily be considered as one falling under the

latter part of Section 436 which pertains to ''the case of any person accused of an offence who has been discharged and that the earlier portion

pertaining to a dismissal of a complaint u/s 203 or Sub-Section(3) of Section 204 cannot be called in aid as it would not apply."" The learned

Judges also pointed out that it is not as though an order of discharge cannot be passed after the charge is framed and that the word ""charge"" has

not been used in the Code in the only specific sense as meaning the charge on which the accused is asked to take his trial. Even in the enquiry stage

of when, before the preliminary steps are over and an order of discharge is passed the magistrate could consider the charge against the accused as

groundless. Therefore, it is obvious that the word ""charge"" in Sub-Section(2) of Section 251-A does not carry the same meaning as the word

charge"" in Sub-section(3) of the same section. The learned Judges further pointed out that:

the word ''charge'' is also used in connection with the enquiry or preliminary steps. There it is not synonymous with the ''charge'' framed to put the

accused on trial. Indeed, no trial commences without a ''charge'' being framed; and, therefore, the mere consideration of the accusation o charge

before discharging the accused as required under Sub-Section(2) of Section 251-A or the use of the words ""at the commencement of the trial

does not in our view, make the entire proceedings only for that reason ''trial''. There is nothing to show that the trial of warrant cases is denuded of

the preliminary steps which are at least in the nature of an inquiry. We, therefore, consider that these reasons impel us to hold that this ''discharge''

under Sub-Section(2) of Section 251-A cannot in any sense for equated or considered as an acquittal of the accused at a ''trial''.

It is, therefore, clear that the petitioners contention that the order passed by the learned Additional First Class Magistrate though termed

discharge, amounted to an acquittal, is unsupportable and that the order setting aside the said order of discharge by the learned District Magistrate

is not open to any valid objection.

The learned District Magistrate has found that in the circumstances of this case, no sanction is necessary u/s 106 of the Madras Village

Panchayats Act, to call for a prior sanction. There must be a reasonable connection between the act complained of against the President and

members of the Board and the discharge of his or their official duty. In this particular case, the evidence disclosed that the petitioners had

demolished what purported to be an encroachment by a wall at dead of night and had also pelted stones on P. W. 1. The learned District

Magistrate has found that the acts done by the petitioners which are prima facie culpable offences cannot form part of the duties cast on the

President or members of the Panchayat Board. There is no valid reason to disagree with the above finding, and I am fortified in this view by a

ruling of Ramakrishnan, J. in Rajagopala Naidu v. Baby alias Kandasami Rowth, Crl. R. C. No. 1444 of 1959 (Mad).

The order setting aside the discharge is therefore, not liable to be interfered with and this petition has necessarily to fail. It is accordingly

dismissed.