Xavier vs Vincent Raj Alias Maria Vincent Raj

Rengasamy, J.—These two Revisions are directed against the orders of discharge by the learned Judicial Magistrate Padmanabhapuram u/s

239 of Criminal Procedure Code in Criminal Miscellaneous Petition No. 5719 of 1991 and Calendar Case No. 126 of 1991. As the learned

Judicial Magistrate, Padmanabhapuram allowed the Petition to discharge the accused and the Calendar Case also was ordered discharging the

accused, these two revisions have been filed separately against the orders of the learned Judicial Magistrate.

The respondents herein have been alleged for the commission of the offences under Sections 323 and 325 on 31-7-1990 at 8:00 p.m. and

though a complaint was launched in the Police Station Thakkalai the Station Officer without registering the case sent the Revision petitioner the

victim to the hospital for treatment and the F.I.R. was registered only on 1-3-1991. The accused who are the respondents herein filed a petition u/s

239 of the Criminal Procedure Code to discharge them on the ground that the allegations made against, them are not true and there are no

sufficient grounds to proceed against them. The learned Judicial Magistrate after referring to the defects in the prosecution case has ordered for the

discharge of the accused.

The learned counsel appearing for the Revision Petitioner contended that the order of the learned Judicial Magistrate is illegal and contrary to

law as the principles enunciated for discharging the accused u/s 239 has not been considered by the learned Judicial Magistrate. On a perusal of

the order of the learned Judicial Magistrate I am able to see that he has gone deep into the statements of the witnesses recorded u/s 161 Criminal

Procedure Code and the merit of the prosecution case, taking into consideration of the infirmities in the prosecution case even at this stage before

framing the charge. The learned Judicial Magistrate has found that though the occurrence said to have been taken place at 8:00 p.m. on 31-7-

1990, for which the complaint was received at 1:30 a.m. on 1-8-90, police memo issued to the hospital was dated 31-7-90, which cannot be true

and though in the Accident Register only seven injuries are mentioned, whereas in the Wound Certificate sixteen injuries are mentioned and it was

not explained as to how PW 1 had sustained sixteen injuries and these discrepancies would lead to the suspicion in the prosecution case. He has

also referred to some more discrepancies in the prosecution case. But I feel that the same were not germane at the stage of framing the charge and

this is a case in which apart from the victim, two other persons have spoken in their statements before the Police u/s 161 of the Criminal Procedure

Code alleging the specific overt acts against these respondents. Inspite of the fact that there is allegation of specific overt acts against the

respondents and the victim also was sent to the hospital for treatment and the Medical Certificate also was produced before the Court, the learned

Judicial Magistrate has gone to discuss about the veracity of the complaint, the delay in registering the complaint and also the alleged suspicious

circumstances for certain injuries not found in the Accident Register. u/s 239 of Criminal Procedure Code upon considering the Police Report and

the documents sent with u/s 173 and after making such examination if the Magistrate finds that the charge against the accused is groundless he shall

discharge the accused after recording the reasons for doing so. Therefore, the Magistrate must be satisfied that there are no grounds to proceed

with for framing the charges for the offences alleged. This aspect has been considered in number of cases by this Court and also by the Supreme

Court in Angusamy v. Kaleeswaran Ambalam, 989 Mad LW (Cri) 108, Ratnavel Pandian, J. (as he then was) after referring to the views of the

Supreme Court has observed that :

The stage of Section 239 of the Code prior to the framing of the charge u/s 240 of the Code, is not expected to be a dress rehearsal of a trial.

The Magistrate at that stage is required to consider the Police Report and the documents sent along with it u/s 173 which are furnished to the

accused in compliance with Section 207 of the Code and the explanation given by the accused during his examination and the submission, if any,

made by the prosecution and the accused for finding out whether the charge, which means the accusation, levelled against the accused is

groundless. At that stage, as rightly pointed out by the learned Single Judge of the Delhi High Court in Surriender Kumar Yadav''s case (1986 (3)

Crimes 645), it is not open to the Magistrate to consider any other document, which is not covered by the provisions of Section 207 of the Code,

and the examination of the accused, if any, under that provision must necessarily be with regard to the material placed by the prosecution against

him and the documents referred to u/s 207 Criminal Procedure Code, but the document produced by the accused are not to be taken into

consideration by the Magistrate while applying his mind whether the accusation levelled against the accused is groundless or not.

In Superintendent & Rememberance of Legal Affairs, West Bengal v. Anil Kumar Bhunja, 1979 Crl LJ 1390, the Supreme Court had observed

that;

At the stage of framing charges, the prosecution evidence does not commence. The Magistrate has therefore, to consider the question as to

framing of charge on a general consideration of the material placed before him by the investigating Police Officer. The standard test, proof and

judgment which is to be applied finally before finding the accused guilty or otherwise is not exactly to be applied at the stage of Sections 227 or

At this stage even a very strong suspicion founded upon materials before the Magistrate, which leads him to form a presumptive opinion as to

the existence of the factual ingredients constituting the offence alleged, may justify the framing of charges against the accused in respect of the

commission of that offence.

In the light of the observation of the Supreme Court, the learned Judicial Magistrate was expected to take into consideration of the materials

placed before him that is, the records filed u/s 173 of the Criminal Procedure Code. The F.I.R. and the Statements recorded u/s 161 of the

Criminal Procedure Code show these respondents, accused had attacked the Revision Petitioner on 31-7-1990 at about 8:00 p.m. The learned

Judicial Magistrate having found this allegation against these respondents, still has chosen to apply the standard test with regard to this allegation by

deeply proving into the merit. As pointed out by the Supreme Court, the test to be applied finally for the judgment cannot be applied at the stage of

Sections 227 or 228 of Criminal Procedure Code. Even a strong suspicion found upon the materials before the Magistrate is sufficient ground to

frame charges against the accused person. In this case as mentioned above in addition to the statement of the Victim PW 1 two other persons have

corroborated his version by their statement before the police and further two doctors have examined the complainant on the Police Memo for

which the wound certificate also have been produced before the Court. Inspite of these records the learned Judicial Magistrate has chosen to

proceed to probe into the merit of the allegations in the light of the delay, in giving the complaint and the corrections in dates and the number of

injuries found on the victim complainant. The delay in registering this case by the police has created a suspicion in the mind of the learned

Magistrate, compelling him to probe into the prosecution version. Even though the complainant gave a complaint in Thakkalai Police'' Station at

1:30 a.m. on 1-8-1990 the Police did not register the case for more than five months and only on 1-3-1991 the F.I.R. was registered. But the

reason has been offered for this delay on the part of the prosecution. As the complainant has alleged in his complaint that these respondents,

accused assaulted him by their hands, the Officer who was in charge of the police station thought that the offence would fall only u/s 323 of the

Indian Penal Code for which the police cannot take cognizance and therefore the complaint was not registered though the victim was sent to the

Hospital for treatment. The victim was initially treated in Thakkalai and thereafter sent to Padmanabhapuram and the Dentist has found that the

injury caused to him was grievous in nature and the wound certificate was sent to the police station stating that the injury No. 3 was grievous in

nature. As this victim had sustained grievous injury which would fall u/s 325 of the Indian Penal Code cognizable by the police, the Sub-Inspector

of Police thereafter registered the case on 1-3-1991 and sent the F.I.R. to the Court. It is true that the Police Officer should have registered the

case even on the date of the complaint irrespective of the question whether the offence was cognizable or not by the police. If it was not cognizable

they could have referred the case as not cognizable. But the police officer in this case has committed the mistake in not registering the case and this

mistake has created a suspicion in the mind of the learned Magistrate who has misapplied Section 239 of Criminal Procedure Code to discharge

the accused. Therefore, the learned Magistrate had not applied his mind properly while applying Section 239 of the Criminal Procedure Code and

he has ordered for the discharge of the respondents/accused, which is of on erroneous order and it has to be rectified by setting aside this order.

The result, is that the order of the learned Magistrate is set aside and the case is ordered to be taken on file, for framing charges and to proceed

according to law. As the respondents have not entered appearance notice shall be issued by the learned Magistrate, Padmanabbapuram before

proceeding with the case.

Order accordingly.