Mohandhas vs S. Muniyandi and 4 others

Maheswaran, J.—This revision is directed against the order of the learned Additional Chief Judicial Magistrate, Kanyakumari at Nagercoil,

framing charges against accused 1 to 3 only under S. 323, I.P.C., in C.C. No. 132 of 1981 and not under other sections of the Indian Penal Code

referred to in the complaint. It is not necessary to enter into greater details regarding the circumstances leading to this revision. It is sufficient to

point out that a private complaint was laid before the Chief Judicial Magistrate, Kanyakumari at Nagercoil by one Mohandhas, the revision

petitioner against the accused, complaining that they have committed offences which are punishable under Ss. 323, 341, 342, 191, 199, 200, 211

and (sic), Part II, I.P.C., read with Ss. 109 and 34, I.P.C. The learned Additional Chief Judicial Magistrate took the complaint on file under those

sections. He later framed a charge under S. 323, I.P.C. against accused 1 to 3 alone. The order framing charge rum as follows:

That you (A1 to A3) on or about 6th July, 1980 at 12 p.m. at Tiruvattar Police Station voluntarily caused simple hurts to witness Mohandas alias

Raj Mohan Dhas and thereby committed an offence punishable under S. 323 I.P.C, and within my. cognizance.

And I hereby direct that you be tried before me on the above said charge.

Obviously, he has discharged accused 4 and 5. It is contended that no reasons are furnished for discharging accused 4 and 5. This objection

appears to be well founded.

My attention was invited to an Govindaraj v. Emperor 47 L.W. 128 : 1938 M.W.N. 38, and to Jayaram In re 61 L.W. 342 : ILR 1949 Mad.

They were cases under S. 253 of Act V of 1898 where S. 253(1) does not indicate that a Magistrate should give reasons for discharging the

accused if he finds that no case against the accused has been made out which, if un-rebutted, would warrant his conviction. But, under the present

Code, under S. 245(1), the Magistrate has to record his reasons for discharging the accused. These two decisions, therefore, would not be

applicable to the cases arising under the present Code (Act II of 1974). The reason is that there must be some material before the High Court

which should satisfy the High Court that the discharge was for good aid proper causes. In this case, the learned Magistrate has not stated that

accused 4 and 5 are discharged, but the fact that he has framed charges against accused 1 to 3 alone, shows that accused 4 and 5 have been

impliedly discharged. The Magistrate ought to have recorded the reasons for this implied discharge which he has not done. The proper course to

be adopted under such circumstances is to set aside the implied order of discharge of accused 4 dud 5 and remit the matter so far as accused 4

and 5 are concerned for fresh consideration as to whether charges should be framed against them or whether they have to be discharged and if

discharged to give reasons for such discharge. The revision is allowed to the extent indicated above. The matter is remitted so far as accused 4 and

5 are concerned for the purpose indicated above.