Jayaraman vs State by Inspector of Police, DCB, Madurai in Crime No. 2/91

P.D. Dinakaran, J.—Heard both parties.

The above revision is directed against the order dated 29.12.1994 in Crl.MP.No.4794 of 1994 in C.C.No.513 of 1993 on the file of the

learned judicial Magistrate No.1, Madurai dismissing the petition preferred by the petitioner, filed u/s 227, Cr.P.C. and refusing to discharge the

petitioner in the above C.C.No.513 of 1993.

The petitioner was facing a trial in C.C.No.513 of 1993, before the learned Judicial Magistrate No.I, Madurai, for the offence punishable u/s

420 read with section 120B, I.P.C.

According to the petitioner, even as per the statement obtained by the police, u/s 162 of Cr.P.C., there is no sufficient ground for proceeding

against the accused and therefore the petitioner seeks to discharge him in the above criminal case. But however, the learned Judicial Magistrate

No.1, Madurai, by his order dated 29.12.1994 in Crl.M.P.No.4794 of 1994 in C.C.No.513 of 1993, dismissed the petition and refused to

discharge him holding that there are grounds for proceedings against the accused punishable for the offence u/s 420 read with section I.P.C.

Hence, the above revision.

The learned counsel for the petitioner, while challenging the order dated 29.12.1994, contends that even though the statement obtained by the

police, u/s 162, Cr.P.C., implicate the name of the petitioner for the alleged offence said to have been committed by the petitioner, the same is not

sufficient to proceed against the petitioner.

Per contra, learned Government Advocate contends that the petitioner has erred in filing the application u/s 227, Cr.P.C. as the same is

applicable only for the offence tribal before the court of sessions, but not before the Magistrate. He further contends that, in the instant case only

sections 239 and 240, Cr.P.C. are applicable and u/s 239, Cr.P.C. Magistrate can discharge the petitioner only if the charges framed against the

accused to be groundless, in the light of the police report and the documents sent to the Court u/s 173, Cr.P.C. On the other hand, it is sufficient if

there is ground for proceeding against the accused punishable for the offence u/s 420 read with 120B, I.P.C., the Magistrate is entitled to frame

charges u/s 240 Cr.P.C. In support of his contentions, he relies upon the decision in State of Maharastra v. Som Nath Thapa,, 1996 SCC 820.

I have given careful consideration to the submissions of both sides.

I agree that the petitioner ought to have filed the application u/s 227, Cr.P.C. for discharging him for the above criminal case. But, however, as

rightly pointed out by the learned Government Advocate when the powers of the learned Judicial Magistrate is traceable under the Code, namely,

239 and 240, Cr.P.C., the court can still go into the merits of the application for discharging and passing orders on merits by exercising power u/s

239 and 240, Cr.P.C. Thereafter, I do not find any infirmity for entertaining the application namely Crl.M.P.No.4794 of 1994 by me learned

Judicial Magistrate No.I, Madurai.

In this regard, it is necessary to refer to the decision of the Apex Court in State of Maharashtra v. Som Nath Thapa, 1996 SCC 820, which

read as follows:

The aforesaid shows that if on the basis of materials on record, a court could come to the conclusion that commission of the offence is a probable

consequence, a case for framing of charge exists. To put it differently, if the court were to think that the accused might have committed the offence

it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the

stage of framing of a charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution

has to be accepted as true at that stage.

In the light of the above decision of the Apex Court, at this stage, particularly when the statement obtained by the police u/s 162, Cr.P.C.

disclose certain grounds for presumption that the petitioner has committed an offence punishable u/s 420 read with 120B, I.P.C., the learned

Judicial Magistrate, rightly without going into the probative value of the materials available before him, refused to discharge the petitioner.

Therefore, I do not find any good and sufficient reason to interfere with the order of the learned Judicial Magistrate in Crl.M.P.No.4794 of 1994 in

C.C.No.513 of 1993 dated 29.12.1994 and hence the same is confirmed. However, I direct the learned Judicial Magistrate No.1, Madurai to

dispose of the trial expeditiously.

In the result, revision is dismissed. No costs.