Kumar vs Perumal and others

M. Karpagavinayagam, J.—This revision is preferred by the petitioner/complainant against the order of the Judicial Magistrate II,

Poonamallee, dated 27-8-1990 discharging the accused in respect of the charges under Ss. 147, 447, 427 and 506(1) IPC by invoking the

provisions under S. 251 of the Code of the criminal procedure.

The facts of the case are as follows :- The complainant/petitioner has purchased a house site with a stone-house from one Rathinam on 24-2-

1989. Since then he had been in possession and enjoyment of the same. The respondents 1 to 13 accused, since gave trouble to the complainant

possession of the said property, he filed a suit O.S. No. 484 of 1980 on the file of District Munsif court, Poonamallee and obtained interim

injunction restraining the accused from interfering with the possession and enjoyment of the property by the complainant. On 28-3-1989 the

complainant also gave a petition to the Superintendent of police, Chingleput and Sub-Inspector of Police, Adambakkam against the

accused/respondent informing about the pendency of interim injunction and the efforts of the accused persons to trespass into the said property

despite the interim injunction.

On 15-4-1989 at about 10-00 a.m. when the complainant and his brother went to the land, they saw the accused trespassed into the said land

removing the parapet wire fence putting around it by the complainant. On questioning about the highhanded action, the accused threatened the

complainant and his brother with dire consequences. This occurrence was witnessed by three more witnesses. Fearing further trouble by the

accused, the complainant came to the police station and gave a complaint. Since the police did not take action against the accused, the complainant

filed a private complaint on 2-5-1989 before the Judicial Magistrate, II, Poonamallee.

On 31-5-1989 this complaint was referred to by the Magistrate for the Police Investigation under S. 156(3) of the Code of the Criminal

Procedure. On receipt of this complaint, the sub-Inspector of Police, Adambakkam registered a case in crime No. 479 of 1989 for the offences

under Ss. 147, 447, 427 and 506(1) IPC. After the investigation the Sub-Inspector of Police filed a charge sheet against the respondents/accused

on 31-5-89 before the Learned Judicial Magistrate, II, Poonamallee, for the offences under Ss. 147, 447, 427 and 506(1) IPC and the same was

taken on file in CC No. 103 of 1990 on 19-2-1990 for the abovesaid offences. On service of summons, the respondents filed an application for

discharge on 22-6-1990 under S. 251 read with S. 255(1) of the Code of the Criminal Procedures on the ground that the contents of the

accusations levelled in the charge sheet against them is false and the question of possession in respect of the land has to be dealt with by the civil

Court in O.S. No. 484 of 1980 on the file of District Munsif, Poonamallee. On 19-7-1990 written objection was filed by APP on behalf of the

police contending that the question of trespass and the act of causing damage and the criminal intimidation could be decided only by the trial Court

and the materials, placed before it and therefore the application for discharge was not maintainable.

After hearing the respective parties, the learned Magistrate passed an order discharging the accused, by elaborately considering the merits of the

case touching upon the various factual aspects found available in the case records.

Aggrieved over this, the present revision has been preferred by the complainant/petitioner under Ss. 397 and 401 of the Code of the Criminal

Procedure, challenging the above order.

Counsel for the petitioner contended that the learned Magistrate committed illegality by invoking the provisions of S. 251 of the Code of the

Cr.P.C. by discharging the accused on appreciation of the statement of the witnesses, which is not permissible under law.

On the contrary, Mr. N. Jothi, learned counsel appearing for the respondents/accused contended that the lower Courts'' order was based on

various decisions rendered by this Court and there is no infirmity in the said order and as such he wants this Court to confirm the order. He further

contended that the original suit filed by the complainant in O.S. No. 484 of 1989 before the District Munsif, Court, Poonamallee has ended in

favour of the respondents and as such the complainant has no case whatsoever.

Mr. S. Manimaran, Government advocate (Criminal side) appearing for the State has contended that the order of the Magistrate is not in

accordance with law since the trial Court has exceeded its limit by indulging itself in the case of appreciation, which cannot be done in the stage of

framing charges. He would also say that the Magistrate has relied upon several citations rendered by this Court to discharge the accused, though

the principles laid down in this case were not at all applicable to the present case.

I have heard both the parties, perused the documents as well as the lower Court records. At the very outset I must say that the order suffers

from grave illegality on two important points of law referred below. The offence for which the cognizance taken by the Magistrate are under

Sections 147, 447, 427 and 506(1), I.P.C. As per the schedule of criminal procedure code these offences are to be tried as summons cases. The

application for discharge was filed u/s 251 read with S. 255(1) of the Code of the Criminal Procedure. Section 251 read with S. 255(1), Cr.P.C.

are contained in Chapter 20. This deals with trial of summon cases by the Magistrate. u/s 251 of Criminal Procedure Code, when the accused

appears before the Magistrate, the particulars of the offences for which he is accused shall be stated to him, and he shall be asked whether he

pleads guilty or has any defence is to make, but it shall not be necessary to frame a formal charge. u/s 255(1) of the Code of the Criminal

Procedure, if the Magistrate, upon taking the evidence referred to in Section 254 and such further evidence, if any, as he may, of his own motion,

cause to be produced, finds the accused not guilty, he shall record an order of acquittal. Therefore, these two sections do not refer the discharge.

On the contrary, u/s 255(1), the Magistrate can acquit, only after taking evidence u/s 254 of the Code of Criminal Procedure, Section 254 of

Cr.P.C. contemplates the necessity of the Magistrate to proceed to hear the prosecution case and as such the Magistrate while invoking Section

255(1) of Cr.P.C. has to necessarily take of the witnesses of either side. Without resorting to this procedure Section 255(1) of the Code of

Criminal Procedure cannot be invoked. In this case, the respondents 1 to 13 herein, have filed a petition for discharge under Sections 251 and

255(1) of the Code of the Criminal Procedure before taking evidence as contemplated u/s 254 of the Code of Criminal Procedure. As such, the

petition itself was not maintainable. The worst part of it is that the order of discharge passed by the Magistrate was u/s 251 of the Code of

Criminal Procedure, which has no relevance to discharge.

The foregoing analysis of these provisions would make it clear that the accused could not invoke for discharge before the trial has been either

under Sections 251 or 255(1) of the Code of the Criminal Procedure. In this case it is fairly apparent that the Magistrate has grossly violated this

mandatory procedure, as contemplated between Sections 251 and 255(1) of the Code of the Criminal Procedure. So, the above order which

suffers from the above illegality is liable to be set aside.

Consequently, there are some other sections provided for discharge, discharging the accused in a (police) warrant case and (Police) sessions

case. u/s 239 of the Code of the Criminal Procedure if upon considering the police report and the documents sent with it u/s 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.

u/s 227 of the Code of the Criminal Procedure, in a sessions case, the Sessions Court, if, upon consideration of the record of the case and the

documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there

is no sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing. However, Sections

239 and 227 of the Code of the Criminal Procedure would not be applicable to this case. I must point out that even the power for discharge of the

accused in (Police) warrant case and (Police) sessions case as provided in Sections 239 and 227 of the Code of the Criminal Procedure has got

some restrictions. Under these sections, the Court can discharge only when there is no sufficient ground for proceeding or the charge against the

accused was found to be groundless and not otherwise. So in the light of these provisions, this Court has to see at least this impugned order passed

by the Magistrate at least satisfy the guidelines provided by these sections. This Court as well as the Apex Court on various occasions held that the

Courts have to consider only the documents filed along with the police report in order to find out whether the charge was groundless or not, for the

discharge of the accused and there is no question of adding or subtracting anything or considering any extraneous materials other than the

documents forwarded to the Court as contemplated u/s 173 of the Code of the Criminal Procedure and furnished to the accused u/s 207 of the

Code of the Criminal Procedure. The stage prior to the framing of the charge is not accepted to be a rehearsal of the trial. The Magistrate at this

stage is required to consider the Police report and the documents sent along with u/s 173 of the Code of Criminal Procedure which are furnished

to the accused in compliance with the accused u/s 207 of the Code of Criminal Procedure and the explanation given by the accused during his

examination and the submissions, if any, made by the prosecution and the accused, for finding out whether accusation levelled against the accused

is groundless. At this stage, it is not open to the Magistrate to consider any other documents which is not covered by the provisions of Section 207

of the Code of the Criminal Procedure. The documents if any produced by the accused at the time of his examinations before the trial is

commenced cannot be taken into consideration by the Magistrate while applying his mind to desire whether to proceed against the accused or not.

These principles have been laid down by this Court in Angusami v. Kalseswaran Ambalam, 1989 MLW (Cri.) 108 by the officiating Chief Justice

S. Ratnaval Pandian (as he then was) and in Muthuraman v. State by Sub-Inspector of Police, Crime Branch, Madras, 1991 MLW (Crl) 223 by

T. S. Arunachalam, J.

In the light of the above principles, this Court has to see the reasonings given for the discharge though it is not permissible u/s 251 of the Code

of Criminal Procedure. The trial Court has elaborately considered the statement of the witnesses and the record produced by the accused and

appreciated the evidence meticulously and discharged the accused. To come to the said conclusion, the Magistrate relied upon catena of decisions

reported in M. N. Subramani v. S. Pasupathi, 1981 MLW (Cri) 251, M. V. Ramaswamy v. State, 1987 MLW (Cri) 71, Thankappan v.

Thankaraj, 1988 MLW (Cri) 395, Kannan v. Inspector of Police (1989) MLW (Cri) 410 and in R. Krishnamurthy v. Raja, 190 MLJ (Cri) 13.

All these decisions relate to the powers of the High Court u/s 482 of the Code of the Criminal Procedure to quash the proceedings when the

proceedings were found to be of civil nature. As such, those decisions would not be applicable to this case. The mere pendency of the suit in Civil

Courts would not entitle the Magistrate to invoke the power u/s 482 of the Code of the Criminal Procedure, to discharge the accused. Moreover,

the meticulous appreciation of the evidence would be done only after the trial is over as contemplated u/s 254 of the Code of the Criminal

Procedure in a summon case like this. The trial Court fully analysed the materials collected by the prosecution and came to the hasty conclusion

that the case was of a civil nature, which is not permissible under law at this stage.

In view of the above situation, I am of the considered opinion that the order suffers from incurable and grave illegality and the same is liable to

be set aside. I am rather pained to see that some of the observations which have been made by the Magistrate are not warranted. The Magistrate

had gone to the extent of saying that

Vernacular matter - Omitted.

I am at a loss to understand how the Magistrate would come to such conclusion without any material whatsoever, that too before the evidence

was let in. So, the way in which the Magistrate has handled the issue in this judgment clearly reveals that he has exceeded his limit, which causes

serious concern in the mind of this Court. With these observations, the order of the learned Magistrate discharging the accused under Sections 251

and 255(1) of Cr.P.C. is set aside and the revision is allowed and the matter is remitted back to proceed on with trial and disposal. The learned

Magistrate is directed to dispose of the case as expeditiously as possible.

Revision allowed.