K.V. Joy and 2 Others vs V. Sankara Narayanan

N. Arumugham, J.—This revision is directed against the order passed by the learned Judicial First Class Magistrate at Pondicherry in C.C. No. 333 of 1991 dated 25.9.92, dismissing the prayer of the accused/Petitioners herein, to uphold the objections regarding jurisdiction to entertain the private complaint filed u/s 200 of the Code of Criminal Procedure and dismiss the complaint filled by the Respondent.

The Respondent herein filed a private complaint before the learned Judicial First Class Magistrate at Pondicherry against the three accused, who are the Petitioners herein, along with another by name M.K. Khan, making the allegations for the offences punishable under Sections 341, 382, 323, 352, 357, 384, 406, 403, 412, 420 read with Section 34, I.P.C. On entertaining the complaint, sworn statement of the complainant, namely, the Respondent herein, was recorded by the learned Magistrate on 4.7.1991. The written complaint above referred appears to have been filed on 30.4.91. On doing such legal exercise, upon the substructum of the allegations and overt acts made by the Respondent herein against the Petitioners and another, the learned Magistrate has taken the cognizance of the offence under the Sections of law above referred. Accordingly, process have been issued by him to all the accused. The accused seem to have entered their appearance on the issuance of process to them through their counsel and the further proceedings of the case was adjourned from time to time for want of appearance of the accused and consequently it reached the stage of issue of non-bailable warrants against them. However, at the directions given by this Court in Crl.O.P. No. 775 of 1992 dated 23.1.1992, the non-bailable warrants issued against these Petitioners were recalled. Thereafter, it appears a petition on behalf of the accused/Petitioners A. 1 to A. 3 herein, was filed raising a preliminary objection about the maintainability of the complaint on the ground of want of jurisdiction as above referred. The said objection was resisted by the Respondent by filing counter objection.

The substratum of the preliminary objection raised on behalf of the Petitioners herein as narrated by the Court below is as follows:

That the complainant has stated in his complaint that the amount of Rs. 5,00,000/- was received at Ernakulam and agreement was signed at Ernakulam only. Further the complainant levelled the allegations against the accused that he was compelled to sign blank papers, agreement and promissory notes at Ernakulam only. A plain reading of the complaint and the notice issued would clearly disclose that there are material contradictions and a false complaint has been laid before this Court by the complainant. There is no piece of evidence to show that Rs. 20,000/- was paid in cash and cheque of Rs. 4.3 lakhs was issued to the accused at Muthialpet Police Station before the Circle Inspector of Police. Moreover, this case is only a counter complaint lodged by the complainant after knowing that the accused herein had filed a complaint before the Additional First Class Magistrate at Ernakulam, as early as 25.4.1991 for various offences. The accused further submit that there is an inordinate delay of nearly seven months in preferring the complaint by the complainant which would go to show that this is only a false complaint against the accused. Further the complainant had filed a civil suit in O.S. No. 116/91 before the Additional Sub Court, Pondicherry for the same incident. Further the complainant failed to file before the Police authorities concerned but have filed this complaint.

Hence, it was prayed for the dismissal of the complaint for want of jurisdiction.

In the counter objections the Respondent/complainant has stated that since the entire sequence of facts had happened within Pondicherry limits and particularly in Muthialpet Circle by the accused, the present complaint filed u/s 200 of the Code of Criminal Procedure originates from the fact that the accused illegally deprived the complainant at Pondicherry to a sum of Rs. 20,000/- in cash and cheque for Rs. 4,50,000 received at Pondicherry and handed over to the accused at Muthialpet Police Station in the presence of Muthialpet Circle Inspector. By raising the said ground, the preliminary objection was resisted by and on behalf of the Respondent.

A perusal of the case records and the impugned order would reveal the fact that cognizance of the offence punishable under Sections 341, 342, 323, 327, 352, 357, 384, 406, 403, 412, 420 read with Section 34, I.P.C. were taken by the predecessor Magistrate on 19.8.91, long before the impugned order was passed by the succeeding learned Magistrate.

5-A. Upon hearing both sides, in the context of the circumstances pointed out above, learned Judicial First Magistrate, has rejected the preliminary objection by observing as follows:

To consider the question, certain evidence is certainly required and which will be forthcoming only during the trial as required u/s 244, Code of Criminal Procedure and not now. After the cognizance have been taken there was no progress on the complaint and there was no change of circumstances also to consider the objections raised by the accused. Hence in the said circumstances, the preliminary objections raised by the accused will be taken into consideration only during the time of framing of change as required u/s 245, Code of Criminal Procedure or u/s 246, Code of Criminal Procedure Hence the petition is dismissed at this stage with liberty to the accused to raise the same during the time of framing of change.

Aggrieved at this and canvassing the legality and propriety of the said order, the present revision has been filed by the accused 1 to 3, who are the Petitioners herein.

I have heard the Bar for and against the impugned order on behalf of the respective parties herein. It was the persistent contention of Mrs. Nalini Chidambaram, learned Senior Counsel that while passing the impugned order on 25.9.92, learned Judicial First Class Magistrate, Pondicherry, had deliberately failed to perceive that the whole activities and overt acts alleged to in the complaint as well as in the sworn statement had taken place only at Ernakulam in Kerala State, and in regard to the same, a complaint was already lodged before the Additional First Class Magistrate at Ernakulam as early as 25.4.1991 against the Respondent/complaint herein, for various of. fences and that the present complaint before the Court below was only a counterblast, schemed out very subsequently., and that being so, taking of the cognizance of the said complaint for any of the offences by the court below is totally without competency and out of jurisdiction and that therefore, learned Magistrate ought to have upheld the objections raised on behalf of the Petitioners. In short to say, learned Senior Counsel would repeatedly contend that the very entertaining of the complaint is without competency for want of jurisdiction and therefore, the impugned order lacks every legality and propriety.

Controverting every one of the said contentions, Mr. K.A. Panchapagesan, learned Counsel appearing for the Respondent would contend that if once a Magistrate upon the perusal of the complaint or the other materials, namely, sworn statement, takes the cognizance of the offences under the penal law and issues process to the accused and consequently, the accused enter appearance through the bar or by themselves, the ingredients of the provisions in Chapter XV of the Code are deemed to be complied with in full, which has to be followed by the procedures under the succeeding Chapters and that if for any reason, the Magistrate while collecting and recording all such evidence to be produced by and on behalf of the complaint finds the charge to be groundless or otherwise, the further procedures to be followed have been clearly spelt out in Sections 244 and 245 of the Code of Criminal Procedures and without doing so, any objection with regard to the jurisdiction cannot be entertained. While saying so, learned Counsel would justify and support the impugned order passed by the learned Magistrate.

In the context of the above rival position, the only question that arises for consideration is whether the impugned order passed by the learned Magistrate, very much involved in this revision, is vitiated by any illegality or impropriety warranting the interference of this Court in this revision?

With regard to the factual position pertaining to the allegations made in the complaint against the Petitioners herein, there appears to be a serious dispute and legal fighting existing between the parties herein, as evident from a civil suit filed in the Subordinate Court at Pondicherry as well as Criminal proceedings initiated before the Additional First Class Magistrate, Ernakulam, against the Respondent herein and others by the Petitioners. Since this revision involves only a limited question of law on the admitted factual aspects of certain allegations made against each other by the respective parties, I do not propose to narrate the whole sequence of events or allegations which are very much in dispute among them but proceed to consider only the scope of this revision as being canvassed and opposed by the Bar.

Once a private complaint is entertained by a Magistrate as provided u/s 200 of the Code of Criminal Procedure subject to the following sections in Chapter XV of the Code and cognizance of the offences has been identified, the next thing to be done legally is to issue process u/s 204 as provided under Chapter XVI. There cannot be any controversy or dispute among the parties herein with regard to the above procedure laid down by the Code. This is exactly what has been followed in this case, namely, that on recording the sworn statement of the complainant on 4.7.91 and considering the written complaint dated 30.4.91, the predecessor of the learned Magistrate, who passed the impugned order, has taken the cognizance of the offences under the various sections of the Indian Penal Code against the accused and consequently issued the process u/s 204, Code of Criminal Procedure. This was followed by the accused, namely, the Petitioners herein, entering appearance through the Bar and since for several hearings subsequently they had not appeared, it appears non bailable warrant was issued and pursuant to the order passed by this Court, the non-bailable warrant was recalled and the Petitioners have been represented by their respective counsel. The case was posted for the examination of the other witnesses. Under such circumstances, we have to see that the further proceedings of the case has to be carried out as provided by the law.

If for any reason the proceedings initiated as above referred to has to be haulted. it must and necessarily be only in accordance with the provisions contained in Part B of Chapter XIX of the Code of Criminal Procedure and by no other mode. With regard to cases instituted otherwise than on police report, Section 244 of the Code provides as follows:

Evidence for prosecution: (1) When, in any warrant case instituted otherwise than on a police report, the accused appears or is brought before a Magistrate, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution.

(2) The Magistrate may, on the application of the prosecution, issue a summons to any of its witnesses directing him to attend or to produce any document or other thing

This is followed by Section 245, which runs as follows:

When accused shall be discharged: (1) If, upon taking all the evidence referred to in Section 244, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him.

(2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless".

In view of the above Sections 244 and 245 on the taking of cognizance of the offences in a private complaint by a learned Magistrate for

A minimum understanding of the phraseology in built in Section 244 that "the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced" emphasized in the subsequent section by the words "upon taking all the evidence referred to in Section 244" would clearly be indicative that the Magistrate shall take and record all evidence produced by the complainant under the above two sections of law and cannot abruptly stop and confine his legal exercise to a particular extent. In this respect, it is noticed that the mandate spelt out in Section 244 to take all such evidence in support of the prosecution case is not only obligatory but also mandatory in nature and that is the reason way phraseology adopted in Sub-section (1) of Section 245 has once again emphasized for taking of the evidence referred to in Section 244 by the learned Magistrate. Of course, it is true that if upon taking all such evidence, wider power given to the learned Magistrate is to record the reasonings that no case has been made put against the accused, which if unrebutted, would warrant his conviction, and to discharge the accused. That is the first stage as provided in Sub-section (1). In the second stage; Magistrate has been given a still wider power to halt the proceedings at any stage of the case if he is satisfied that the recorded evidence, or for other reasons, he considers that the taking cognizance of the charge was found to be groundless. The intention of the Legislature in providing such wider power to the Magistrate is quite obvious, in order not only to render justice in its proper perspective but also on the principle of fairplay and equity. It is, therefore, under such circumstances, the power vested with the Magistrate under the earlier Section seems to have been regulated and confined by the two grounds specifically spelt out in the subsequent Sections to discharge the accused in the middle. If the accused wants to get the discharge in the middle, he could approach the Court of Law only in accordance with the above sections of law and it is imperative on the part of the Magistrate to exercise his power in accordance with the same. If this is the legal ratio, then, I have to see whether the impugned order passed by the learned Magistrate comes within the ambit of the above.

If such an exercise is warranted I must necessarily advert to the impugned order. It was the definite finding of the learned Magistrate that the question of correct jurisdiction cannot be entertained at this stage as the case was posted for recording further evidence to be produced by and on behalf of the complainant. If I am to accept the view of the learned Magistrate, it is noticed that all evidence to be produced by and on behalf of the complainant as provided under Sections 244 and 245 has not at all been completed but, however, yet to be completed, in the sense, that only the sworn statement of the complainant along with written complaint was recorded and the case is posted for recording further evidence. of course, it is true, if that is done, the accused may have the opportunity to cross examine, which would result in unearthing the truth, so as to enable the Court to arrive at a correct conclusion but however, before doing so, it cannot be said, that all evidence required to be recorded by the learned Magistrate has been produced at this stage. It was for the said reason, learned Magistrate has come to the conclusion that the objection of the said type cannot be considered at this stage.

Even looking at the sworn statement given by the complainant, enough for me at this stage, to say that there are substantial portions of evidence, which claim that there are many overt acts happened between the parties herein in Muthialpet Police Station, within the jurisdiction of the learned Magistrate. Perhaps, the said evidence was the basis for taking cognizance of the offences by the trial Court at the initial stage.

At this stage, I feel it is relevant to advert to Section 178 of the Code of Criminal Procedure, particularly in Chapter XIII, which runs as follows:

Place of inquiry or trial: (a) When it is uncertain in which of several local areas an offence was committed, or

(b) Where an offence is committed partly in one local area and partly in another, or

(c) Where an offence is a continuing one, and continues to be committed in more local areas than one, or

(d) Where it consists of several acts done in different local areas, it may be inquired into or tried by a Court having jurisdiction over any of such local areas.

In view of the above section of law, I do not want to express any of my opinion at this stage. However, it is always open for the Petitioners herein to raise that question subsequently as was held by the learned trial Magistrate. It is not as if that the learned trial Magistrate has held that his Court has competency or jurisdiction either to entertain or take the cognizance of the offence above referred to. What the learned trial Magistrate has held is that the said question of jurisdiction, in the name of objection, can be raised and looked into only after the taking of all such evidence produced by and on behalf of the complainant before framing the charge and for doing so, an opportunity was given to the Petitioners herein by the trial Court itself. Therefore, in the light of the said finding and observation, I am totally unable to accept the contentions raised on behalf of the revision Petitioners herein as the impugned order does not lack in propriety or legality.

Even so, under the circumstances, I have my preference to add the principles in this regard, laid down by the Supreme Court. In R.B. Mithani v. State of Maharashtra (1979 S.C.C (Crl.) 405) , the Apex Court has held as follows:

In a warrant case instituted otherwise than on a police report "discharge" or "acquittal" of accused are distinct concepts applicable to different stages of the proceedings in Court. The legal effect and incidents of "discharge" and "acquittal" are also different. An order of discharge in a warrant case instituted on complaint, can be made only after the process has been issued and before the charge is framed. Section 253(1) shows that as a general rule there can be no order of discharge unless the evidence of all the prosecution witnesses has been taken and the Magistrate considers for reasons to be recorded, in the light of the evidence, that no case has been made out. Sub-section (2) which authorises the Magistrate to discharge the accused at any previous stage of the case if he considers the charge to be groundless, is an exception to that rule. A discharge without considering the evidence taken is illegal.

Once a charge is framed in a warrant case, instituted either on complaint or police report, the Magistrate has no power under the Code to discharge the accused, and thereafter, he can either acquit or convict the accused unless he decides to proceed under Sections 349 and 562 of the Code of 1898 (which correspond to Sections 325 and 360 of the Code of 1973)

So that if after framing charge Magistrate whimsically, without appraising the evidence and without permitting the prosecution to produce all its evidence, "discharge" the accused, such an acquittal, without trial, even if clothed as "discharge" will be illegal. This is precisely what has happened in the instant case.

It is thus seen their Lordships of the Supreme Court have clearly laid down the legal principle to be followed, to the facts of the instant case, which is akin to the facts of the abovestated case law.

In J. Ranganathan, Second Income Tax Officer Vs. M.S. Bhavani, I had the occasion to observe as follows in similar circumstances but on different facts:

A combined reading of both Sub-sections (1) and (2) of Section 244 of the Code of Criminal Procedure 1973, makes it clear that the Magistrate shall necessarily record all evidence, both oral and documentary, adduced by the prosecution on instituting a case as contemplated under this section. The word "groundless" in Sub-section (2) of Section 245 of the Code would clearly mean that the evidence must be such that no conviction can be rested on it. A combined reading of Sub-sections (1) and (2) of Section 245 shows that the duty of the Magistrate in recording such of the evidence, both oral and documentary, produced by the prosecution is not only onerous but also a mandatory one, before passing the order of discharge or otherwise. In short, without recording any evidence, or ascertaining from any other documentary evidence, a petition filed by or on behalf of the accused praying for discharge u/s 245(2) of the Code cannot be entertained.

It is also relevant to advert to the observations made by a learned single judge of the Kerala High Court, as he then was, in K. Gopala Panicker Vs. Kumaran Kesavan Nediyaplankalavila Veedu and Others, , in the following words:

Section 253(2) empowers a Magistrate to discharge the accused person only if for reasons to be recorded by such Magistrate, he considers the charge to be groundless. The Magistrate has no jurisdiction to pass an order discharging the accused without applying his mind to the evidence before him. The application of Section 253(2) depends upon the evidence already on record. The Magistrate has to arrive at the conclusion judicially and not capriciously. It is true that the Magistrate may in a suitable case come to the conclusion that the charge is groundless even before he had heard complainant u/s 252. But in a ease where the complaint does, in fact, disclose the commission of a prima facie offence the Magistrate cannot find the charge to be groundless until the complainant has been examined. If the accused is not served, the Magistrate has to take coercive process to secure his presence or split up the case and proceed against the accused who are available. The mere absence of the complainant will not be a ground to hold that the charge is groundless and to discharge the accused.

Section 259 Code of Criminal Procedure can have no application to this case.

It is noted that Sections 252 and 253 in the 1898 Code correspond to Sections 244 and 245 of the present Code of 1973.

There is a clear distinction identified between the gamut of Sections 227, 239 and 245 of the Code of Criminal Procedure. The test to determine whether an accused in a given case can be charged or discharged rests only on facts consisting of the evidence projecting the existence of the prima facie case; and that the grave and strong suspicion exists backed by a strong judicial mind can be said to have been made on the basis of the evidence available on record. It is also settled by now that the evaluation of records in its full form and documents has become imperative in order to find out if the facts emerging therefrom, taken on the face value disclose the ingredients of the various offences specified. On an overall consideration of the above legal principles in the context of the above two sections of law, it is thus made clear that when the process is issued, it is deemed to be issued only after satisfaction of the Magistrate that in his opinion there is sufficient ground for proceeding further. It follows and would that he was satisfied at the stage of issuance of process that the complaint was not groundless and that some kind of additional evidence would be required to make him change his prior opinion that there were grounds for issuing process and that the complaint was not groundless. In the light of the above legal principle, if the discharge asked for on behalf of the Petitioners before the Court below is to be granted, then the ingredients spelt out in Sub-section (1) or (2) of Section 245 has to be made out. As I have already point out, the question of jurisdiction, as was rightly held by the learned Magistrate can be looked into at the time of framing the charge after recording all or adequate evidence produced by or on behalf of the complainant, for which, the Petitioners were given liberty by the learned Magistrate himself. Having thus considered the whole gamut of the case on hand, I am totally unable to identify a single semblance of illegality or impropriety in the impugned order. With the result, the present revision has necessarily to fail.

In the result, for all the foregoing reasons given above, the revision fails and accordingly, is dismissed. Consequently, the impugned order passed by the learned Magistrate in C.C. No. 333 of 1991 dated 25.9.92 is hereby confirmed and maintained.