Kannan and 2 Others vs The Inspectors of Police C2 Police Station Madras and 3 others

David Annoussamy, J.—This is a petition u/s 482 Cr.P.C., to quash the proceedings in C.C. No. 2370 of 1985 on the file of the VIII Metropolitan Magistrate, G.T. Madras.

The case of the Petitioners is that a final report u/s 173 Cr.P.C., has been filed by the police to the effect that an offence u/s 160 I.P.C., appeared to have been committed by the Petitioners. It is argued that from the materials placed before the Court viz., the statements of witnesses, the ingredients for the offence are not made out and there was a difference between ''fighting'', which is an essential ingredient of an offence defined u/s 159 I.P.C., and punishable u/s 160 I.P.C. He also produced to that effect a decision of the High Court of Mysore in Korga Shetty v. State of Mysore 1971 M.L.J. Cri. 246.

In the present case, it appears that the Magistrate has only issued summons to the Petitioners. Once the accused appear, the Magistrate will follow the procedure prescribed u/s 251 Cr.P.C., as the case is a summons case. As per that Section, it is not necessary for the Magistrate to frame a formal charge, but he may also, if he finds it proper and expedient, frame a charge. In fact, the particulars of the offence will be stated to the Petitioners orally and that would tantamount to the charge if no plea is put forth by the accused. There is no other criminal trial without a charge. The power of framing the charge, either orally or in writing, includes also the power of discharge. It is well accepted principle of Jurisprudence that in matters of procedure what is not prescribed is admissible. Further, u/s 251 Cr.P.C., the Magistrate, after stating the particulars, shall ask the accused whether he pleads guilty or has any defence to make. Therefore, the Petitioner has got a choice between three solutions; either to plead guilty or plead simply not guilty or put forth his case. Therefore, it is open to the Petitioners to plead before the Magistrate that in the present case there is no room for proceeding, since from the statements furnished to them there is no ingredient constituting an offence. They can also, if they are so advised to, file a petition for discharge, and invite the Magistrate to pass orders thereon. If the Magistrate passes such an order and if the Petitioners, upon perusing the same, feel that the order is wrong it is always open to them to challenge that order in the manner known to law. When a Magistrate has not chosen to interrogate the Petitioners u/s 251 Cr.P.C., and before the Petitioners apprise the Magistrate about their plea and before the Magistrate passes an order thereon, there is no reason for this Court to interfere u/s 482 Cr.P.C., With the above observations, the petition is dismissed.