IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE [ENTITY] FRIDAY,THE 21ST DAY OF NOVEMBER 2014/30TH KARTHIKA, 1936 [CASE NUMBER] (B) AGAINST THE ORDER IN [CASE NUMBER] ADDL SESSIONS COURT, PALAKKAD DATED 15-05-2004. AGAINST THE ORDER IN [CASE NUMBER] of JUDICIAL FIRST CLASS MAGISTRATE COURT,CHITTUR DATED 13-08-2003. REVISION PETITIONER(S)/RESPONDENTS/ACCUSED.: 1. [ENTITY], S/[ENTITY], NADUKALATHU, [ENTITY], CHITTUR TALUK, PALAKKAD DISTRICT. 2. [ENTITY], S/[ENTITY], DO. ODO. 3. [ENTITY], S/[ENTITY], DO. DO. 4. [ENTITY], S/O.APPU, DO. DO. 5. [ENTITY], S/O.APPU,. DO. DO. BY ADVS.SRI.SAJAN VARGHEESE K. [ENTITY]. M.P. RESPONDENT(S)/COMPLAINANT.: 1. [ENTITY], S/[ENTITY], [ENTITY], [ENTITY], CHITTUR TALUK, PALAKKAD DISTRICT. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. [ENTITY]. R2 BY PUBLIC PROSECUTOR [ENTITY]. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 21-11-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: amk [ENTITY], J. [CASE NUMBER] Dated this the 21st day of November,2014. O R D E R
Short question arising for consideration in this criminal revision is the correctness of the finding of the Sessions Judge that what is required to be determined by a trial Magistrate at the stage of [SECTION] [ACT] is to determine if there is a prima facie case to frame charge under [SECTION] [ACT] or not.
2. Short facts borne out from the complaint, relevant for disposal of this case, are as follows :
On 15-08-2001 at about 8.00 a.m., the accused persons along with some workers, armed with spade, crowbar, chopper etc. trespassed into the garden of the complainant and cut and destroyed mango saplings, plantains and other cash crops. Thereafter, they annexed a portion of the complainant's property to that of the accused. It is also alleged that the accused abused the complainant in filthy language. It is seen from the records that the learned Magistrate after complying with the formalities, took cognizance of the case under [SECTION], [SECTION], [SECTION] and [SECTION]/[SECTION] [ACT] Process was issued. Accused persons/revision petitioners entered appearance and contested the case. Evidence was taken under [SECTION] [ACT] Learned Magistrate thereafter considered the evidence under [SECTION] [ACT] and found that there was no case against the accused made out by the prosecution which, if unrebutted, would warrant his conviction. Therefore, the learned Magistrate discharged the revision petitioners. Against that order, the complainant approached the Sessions Court. As per the impugned order, the learned Sessions Judge reversed the finding of the Magistrate and found that the Magistrate overstepped his jurisdiction and wrongly discharged the accused persons. According to the learned Sessions Judge, the Magistrate should have only seen whether there is any prima facie case to frame charge in this matter.
3. Heard the learned counsel for the revision petitioners/accused, learned counsel for the complainant/ respondent and the learned Public Prosecutor.
4. Learned counsel for the revision petitioners submitted that the order of the lower revisional court is legally incorrect. According to him, the view taken by the Magistrate is the correct view. The Magistrate after application of mind found that there is no case against the accused persons made out by the prosecution which, if unrebutted, would warrant his conviction. The concept of prima facie case is alien to the consideration under [SECTION] [ACT], contended the counsel. It is to be borne in mind that a private complaint filed under [SECTION] [ACT] will have to go through various stages provided in the [ACT]. Firstly, the complainant will be examined under [SECTION] [ACT] In a given case, the court may postpone issue of process and proceed to conduct enquiry under [SECTION] [ACT] If, after considering the statements on oath of the complainant and of the witnesses, the Magistrate is of the opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint under [SECTION] [ACT] If a complaint is not dismissed under [SECTION] [ACT], the Magistrate shall issue process under [SECTION] [ACT] Thereafter, in any warrant-case instituted otherwise than on a police report (commonly called 'a private complaint'), the prosecution is bound to adduce evidence as provided in [SECTION] [ACT] [SECTION] [ACT] is quoted hereunder for clarity :
"244. 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."
5. This is a case wherein the witnesses examined by the complainant was cross examined by the accused. Learned counsel relying on a decision of the Supreme Court in [PRECEDENT] contended that the accused has a right to cross examine the witnesses examined by the complainant at the stage of enquiry under [SECTION] [ACT] The Supreme Court in the [PRECEDENT]'s case (supra) elaborately considered the right of the accused to cross examine the witnesses examined by the prosecution in paragraphs 13 to 18 reads as follows :
" 13. Mr. [ENTITY], learned senior counsel appearing for the respondent-complainant strenuously argued that [SECTION] does not envisage, leave alone provide for in specific terms, cross-examination of witnesses produced by the prosecution by the accused. He submitted that since the provision of [SECTION] did not recognise any such right of an accused before framing of charges, it did not make any difference whether the Court was evaluating evidence adduced at the stage of cognizance and summoning of the accused or that adduced after he had appeared before the Magistrate under [SECTION]. He particularly drew our attention to sub-section (4) to [SECTION] which requires the Magistrate to ask the accused whether he wishes to cross-examine any, and if so, which of the witnesses for the prosecution whose evidence has been taken. It was contended by Mr. [ENTITY] that the provision of sub-section (4) to [SECTION] provides for cross-examination by the accused only after charges have been framed and not before. There is, in our opinion, no merit in that contention which needs to be noticed only to be rejected. We say so for reasons more than one. In the first place, the expression "Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution" appearing in [SECTION] refers to evidence within the meaning of [SECTION] of the [ACT]. [SECTION] reads as under:
3. Interpretation clause - In this Act the following words and expressions are used in the following senses, unless a contrary intention appears from the context:-
xx xx xx "Evidence".- "Evidence" means and includes-
1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry, such statements are called oral evidence;
2) all documents including electronic records produced for the inspection of the Court, such documents are called documentary evidence."
14. We may also refer to [SECTION] of the [ACT] which deals with examination of witnesses. [SECTION] appearing in that Chapter defines the expressions examination-in-chief, cross and re-
examination while [SECTION] stipulates the order of examinations and reads as under:
"138. Order of examinations.- Witnesses shall be first examined-in-chief, then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re- examined.
The examination and cross-examination must relate to relevant facts, but the cross- examination need not be confined to the facts to which the witness testified on his examination-in-chief.
Direction of re-examination.- The re- examination shall be directed to the explanation of matters referred to in cross- examination; and, if new matter is, by permission of the Court, introduced in re- examination, the adverse party may further cross-examine upon that matter."
15. It is trite that evidence within the meaning of the [ACT] and so also within the meaning of [SECTION] of the [ACT] is what is recorded in the manner stipulated under [SECTION] in the case of oral evidence. Documentary evidence would similarly be evidence only if the documents are proved in the manner recognised and provided for under the [ACT] unless of course a statutory provision makes the document admissible as evidence without any formal proof thereof.
16. Suffice it to say that evidence referred to in [SECTION], [SECTION] and [SECTION] must, on a plain reading of the said provisions and the provisions of the [ACT], be admissible only if the same is produced and, in the case of documents, proved in accordance with the procedure established under the [ACT] which includes the rights of the parties against whom this evidence is produced to cross-examine the witnesses concerned.
17. Secondly, because evidence under [SECTION] has to be recorded in the presence of the accused and if a right of cross-examination was not available to him, he would be no more than an idle spectator in the entire process. The whole object underlying recording of evidence under [SECTION] after the accused has appeared is to ensure that not only does the accused have the opportunity to hear the evidence adduced against him, but also to defend himself by cross-examining the witnesses with a view to showing that the witness is either unreliable or that a statement made by him does not have any evidentiary value or that it does not incriminate him. [SECTION] of the Code, as noticed earlier, empowers the Magistrate to discharge the accused if, upon taking of all the evidence referred to in [SECTION], he considers that no case against the accused has been made out which may warrant his conviction.
Whether or not a case is made out against him, can be decided only when the accused is allowed to cross-examine the witnesses for otherwise he may not be in a position to demonstrate that no case is made out against him and thereby claim a discharge under [SECTION] of the Code. It is elementary that the ultimate quest in any judicial determination is to arrive at the truth, which is not possible unless the deposition of witnesses goes through the fire of cross-examination. In a criminal case, using a statement of a witness at the trial, without affording to the accused an opportunity to cross-examine, is tantamount to condemning him unheard. Life and liberty of an individual recognised as the most valuable rights cannot be jeopardised leave alone taken away without conceding to the accused the right to question those deposing against him from the witness box.
18. Thirdly, because the right of cross- examination granted to an accused under [SECTION] even before framing of the charges does not, in the least, cause any prejudice to the complainant or result in any failure of justice, while denial of such a right is likely and indeed bound to prejudice the accused in his defence. The fact that after the Court has found a case justifying framing of charges against the accused, the accused has a right to cross-examine the prosecution witnesses under [SECTION] does not necessarily mean that such a right cannot be conceded to the accused before the charges are framed or that the Parliament intended to take away any such right at the pre-charge stage."
6. The ratio in the case, stated shortly, is that the power to frame charge under [SECTION] [ACT] has to be exercised on the basis of evidence recorded under [SECTION] [ACT] The right of the accused to cross examine the witnesses produced and examined by the complainant is also recognized by the Supreme Court.
7. The question cropping up for decision in this case is whether the view taken by the learned Sessions Judge that what is required to be decided at the stage of [SECTION] [ACT] is to see whether a prima facie case is made out is correct or not. Learned counsel for the revision petitioners took me through the detailed consideration of evidence by the learned Magistrate. What the learned Magistrate found after an elaborate consideration is that the evidence adduced by the complainant is incongruous to the averments in the complaint and the oral evidence adduced before him through various witnesses are contradictory to one another. On going through the order passed by the learned Magistrate while discharging the accused, I am of the view that the learned Magistrate has appreciated the evidence as if he is adjudicating the case at the final stage. What is required in [SECTION] [ACT] has been stated by the Supreme Court in unequivocal terms in the following decisions; [PRECEDENT] and [PRECEDENT]. In [PRECEDENT]'s case (supra), the Supreme Court considered the scope and effect of the expression discharged used in [SECTION], [SECTION] and [SECTION] [ACT] The ratio is as follows :
" The [ACT] contemplates discharge of the accused by the Court of Session under [SECTION] in a case triable by it; cases instituted upon a police report are covered by [SECTION] and cases instituted otherwise than on police report are dealt with in [SECTION]. The three sections contain somewhat different provisions in regard to discharge of the accused. Under [SECTION], the trial Judge is required to discharge the accused if he `considers that there is not sufficient ground for proceeding against the accused'. Obligation to discharge the accused under [SECTION] arises when "theMagistrate considers the charge against the accused to be groundless". The power to discharge is exercisable under [SECTION] when "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 "It is a fact that [SECTION] and [SECTION] provide for discharge being ordered before the recording of evidence and the consideration as to whether charge has to be framed or not is required to be made on the basis of the record of the case, including documents and oral hearing of the accused and the prosecution or the police report, the documents sent along with it and examination of the accused and after affording an opportunity to the two parties to be heard. The stage for discharge under [SECTION], on the other hand, is reached only after the evidence referred to in [SECTION] has been taken. Notwithstanding this difference in the position there is no scope for doubt that the stage at which the Magistrate is required to consider the question of framing of charge under [SECTION] is a preliminary one and the test of "prima facie"case has to be applied. In spite of the difference in the language of the three sections the legal position is that if the trial Court is satisfied that a prima facie case is made out, charge has to be framed."
8. This decision was considered and approved by a bench of learned three Judges of the Supreme Court in [PRECEDENT]'s case (supra). Paragraph 32 is quoted for better understanding of the legal position :
" 32. The aforesaid shows that if on the basis of materials on record, a Court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the Court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage."
9. The above principle has been restated by the Apex Court in a decision reported in State of Tamil Nadu v. N.Suresh Rajan and Others ( 2014(1) SN 55, Case No.76 (S.C that at the stage of [SECTION], the court is only required to see that there is a prima facie case to proceed against the accused. Therefore, the learned Sessions Judge was right in his finding that the learned Magistrate exceeded his jurisdiction by appreciating the evidence to find that it varied from the averments in the complaint and also that testimony of witnesses were incongruous to one another. The reasons stated by the learned Magistrate for discarding the evidence are beyond the scope of an enquiry under [SECTION] [ACT] Therefore, I find that the lower revisional court was correct.
In the result, the revision petition is dismissed as it is devoid of any merit.
All pending interlocutory applications will stand dismissed.
[ENTITY], JUDGE.
amk True copy P.A toJudge