IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 25TH NOVEMBER 2008 / 4TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 3475 OF 2008() ------------------------------ CC.279/2003 of CHIEF JUDICIAL MAGISTRATE, KASARAGOD .................... REVN. PETITIONER(S): ACCUSED 1 - 4 ---------------------------------- 1. ABDULLA, AGED 40 YEARS, S/O. CHERAKKADAVU MUHAMMED, CHEROOR KUNNU, CHEROOR.P.O, CHENGALA VILLAGE, KASARAGOD. 2. KHALID, AGED 35 YEARS, S/O. CHERAKKADAVU MUHAMMED, CHEROOR KUNNU, CHEROOR.P.O, CHENGALA VILLAGE, KASARAGOD. 3. LATHEEF, AGED 25 YEARS, S/O. CHERAKADAVU MUHAMMED, CHEROOR KUNNU, CHEROOR.P.O, CHENGALA VILLAGE, KASARAGOD. 4. VITLA MUHAMMED, AGED 55 YEARS, S/O. CHERAKADAVU MUHAMMED, CHEROOR KUNNU, CHEROOR.P.O, CHENGALA VILLAGE, KASARAGOD. BY ADV. SRI.BECHU KURIAN THOMAS RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE: -------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. 2. ABDUL RAHIMAN, AGED 22 YEARS, S/O. ABDULAKUNHI HAJI,CHEROOR, CHENGALA VILLAGE, KASARAGOD TALUK. PUBLIC PROSECUTOR SRI. C.M. KAMMAPPU FOR R1 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 25/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO. 3475 OF 2008 ------------------------------------------ Dated this the 25th day of November, 2008 O R D E R Revision petitioners are the accused in C.C.279 of 2003 on the file of Chief Judicial Magistrate, Kasaragod. Revision is filed challenging the order passed by Chief Judicial Magistrate after recording the evidence on the side of the complainant and hearing the prosecution and defence, posting the case for framing charge under section 246 of Code of Criminal Procedure holding that a prima facie case, if unrebutted would warrant conviction of the accused was made out, for the offence under section 447, 323, 324, 427 and 506(ii) read with section 34 IPC. 2. Learned counsel appearing for petitioners and the learned Public Prosecutor were heard. 3. The argument of the learned counsel is that protest complaint was filed after a refer report was filed by the police on investigation as directed by the Court under section 156 (3) of Cr.P.C. The learned counsel argued that though PWs 1 to 5 were examined, they were cross-examined and even documents were marked on the side of the defence and learned Magistrate CRRP 3475/08 2 is bound to consider whether on the materials so produced by the complainant stand unrebutted whether accused could be convicted and learned Magistrate has to appreciate the evidence and cannot mechanically frame the charge as a post office of the complainant which is not contemplated under Criminal Procedure Code and the order is to be quashed. Learned counsel relied on the decision of the Apex Court in Union of India Vs. Prafulla Kumar Samal and Another ((1979) 3 Supreme Court Cases 4) where the guidelines to be complied by Sessions Judge in considering the question of framing charge under section 228 of Code of Criminal Procedure was laid down. The learned counsel stressed on the observations of the their Lordships that the materials placed before the Court shall disclose grave suspicion against the accused, which if not properly explained would enable the Court to frame a charge and proceed with the trial and the test to determine a prima facie case would naturally depend upon the facts of each case. It was argued that the order passed by the learned Magistrate does not show that he had even applied his judicial mind to decide whether a charge is to be framed or not and therefore the order is to be quashed. Learned counsel also CRRP 3475/08 3 relied on the decision of this Court in Jacob Thomas Vs. Assistant Collector of Customs (1988 (1) KLT 741). The learned counsel argued that the order does not show the reasons or the evidence based on which Magistrate found a prima facie case and therefore the order is illegal. 4. Apex Court in Prafulla Kumar's case (supra) considered the principles for framing charge under section 228 of Cr.P.C. and laid down the principles as follows: “(1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. (2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial. CRRP 3475/08 4 (3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. (4) That in exercising his jurisdiction under section 227 of the Code the Judge which under the present Code is a senior and experienced court cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the CRRP 3475/08 5 pros and cons of the matter and weigh the evidence as if he was conducting a trial. ” Section 244 of Code of Criminal Procedure provides that in any warrant case instituted otherwise than on a police report, when the accused appears or is brought before a Magistrate, Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of prosecution. Sub section 2 provides for issuance of summons to any witness, directing him to attend or to produce any document or other thing, on the application of the prosecution. Sub section 1 of section 245 provides that upon taking all the evidence as stated in section 244, if the Magistrate considers that no case against the accused has been made out, which if unrebutted would warrant his conviction, the Magistrate shall discharge him after recording reasons. If upon considering such evidence, Magistrate does not find that the accused is to be discharged as provided under sub section 1 of section 245, Magistrate shall proceed as provided under section 246. Under sub section 1, when such evidence as stated in section 244 has been taken and on such evidence Magistrate is of the opinion that there is ground for proceeding that the accused had committed an CRRP 3475/08 6 offence, which he is competent to try, he shall frame the charge against the accused. 5. When sub section 1 of section 245 provides for an order, with reasons for discharging an accused, if the Magistrate considers on the evidence recorded under section 244 that such evidence if unrebutted would not warrant his conviction, sub section (1) of section 246 does not warrant an order recording reasons for presuming that the accused has committed an offence for which the charge is to be framed. If the argument of the learned counsel is to be accepted, necessarily a Magistrate while framing charge under section 240 in a warrant case instituted on a police report or under section 246 on a warrant trial otherwise than on a police report or Sessions Judge while framing charge under section 228 has to write an order with reasons why the Magistrate or the Sessions Judge is of the opinion that a charge is to be framed. If such an interpretation is to be given Sessions Judge has to write also an order with reasons after hearing the prosecution and the defence under section 232, before proceeding under section 233 of Cr.P.C. I cannot agree with the view that either a Magistrate or Sessions Judge has to record reasons at each of these stages. CRRP 3475/08 7 What is necessary is application of a judicial mind on the evidence and materials placed by the prosecution before framing charge. If on the materials the Magistrate or the Sessions Judge finds that there is a prima facie case to be proceeded with charge is to be framed and if it is found that there is no sufficient ground for proceeding against the accused, which, if unrebutted, warrants his conviction the accused shall be discharged. Otherwise charge is to be framed as provided under the subsequent sections. In such a case Magistrate need not record his reasons so doing so. The records must show that the Magistrate has applied his mind on the question whether a prima facie case is made out or not for framing the charge. 6. This Court had considered the question in Jacob Thomas's case (supra) and held: “12. It follows that all that need be shown for framing a charge is 'ground for presuming that accused has committed an offence', not evidence to prove that accused has committed the offence. Discharge need be made only if no case is made out on the material before court, if it stands unrebutted. Rebuttal on grounds of CRRP 3475/08 8 law and facts, is for a later stage. Chapter XIX deal with trial of warrant cases. There is a dichotomy in the Chapter, cases instituted on police report and cases instituted on complaint. S.239 deals with discharge and S.240 deals with framing of charge, in a case instituted on a police report. If, upon consideration of documents and examination, if any, the magistrate is of opinion that there is ground for presuming that the accused has committed an offence, he shall frame a charge. Accused shall be discharged, if, upon considering the police report and documents under S.173, the charge is found 'groundless'. Records under S.173 which are not necessarily admissible evidence, can be considered for purposes of framing charge. On the same principle, irrespective of the admissibility or truth of statements in Exts.P1 to P108, it is open to magistrate to frame a charge if on the basis of these and the evidence he is satisfied, that 'ground exists to CRRP 3475/08 9 presume that accused has committed an offence'. ” 7. Though the impugned order does not elaborately say that on such and such evidence such and such offence a prima facie case is made out, the order shows that learned Magistrate after recording the evidence of PWs 1 to 5 and Exts.P1 to P6 had applied his mind and was satisfied with the prima facie case, which if unrebutted, warrant conviction of the accused. It is recording that fact Magistrate decided to frame charge. Order is perfectly legal. In such circumstances I find no reason to interfere with the order. Revision is dismissed. M. SASIDHARAN NAMBIAR, JUDGE Okb/-