IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 29TH OCTOBER 2008 / 7TH KARTHIKA 1930 Crl.Rev.Pet.No. 2440 of 2008() ------------------------------ CC.352/2006 of CHIEF JUDICIAL MAGISTRATE, KALPETTA .................... REVN. PETITIONER(S): ACCUSED ---------------------------- SHIHABUDEEN @ SHIHAB, S/O. BAVA HAJI, ALUNKAL HOUSE, MEPPADI.P.O, KOTTAPPADY, VYTHIRI TALUK, WAYANAD DISTRICT. BY ADV. SRI.GRASHIOUS KURIAKOSE RESPONDENT(S): COMPLAINANT AND STATE ------------------------------------ 1. K.C. SUDHAKARAN, S/O.GOPALAN NAIR, ASHOKA LANE, MEPPADI, KOTTAPPADY, VYTHIRI TALUK, WAYANAD DISTRICT. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI C M NAZAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 29/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ........................................... CRL.R.P.NO. 2440 OF 2008 ............................................ DATED THIS THE 29th DAY OF OCTOBER, 2008 ORDER Petitioner is the accused in C.C.352 of 2006 on the file of Chief Judicial Magistrate, Kalpetta. Leaned Magistrate took cognizance of the offence on a private complaint filed by first respondent, alleging that petitioner committed an offence under Section 379 IPC. Petitioner had originally filed Ext.P2 complaint before the police, alleging that 8440 litres of kerosine, which was meant for sale to ration card holders and kept in the ration shop run by the petitioner in Kalpetta, was found stolen on the morning of 24.9.2005. Police registered a case and finally filed a final refer report that the case could not be detected. First respondent, thereafter filed a complaint, CMP 2931 of 2006, being a protest complaint. Learned Magistrate took cognizance of the offence and issued summons to petitioner. When petitioner appeared, he was released on bail. Chief Judicial Magistrate thereafter examined first respondent as PW1 and Exts.P1 to P3 were marked. Thereafter, hearing the complainant and the defence on 18.6.2008, charge was framed for the offence under Section 379 IPC. That order is challenged in this revision CRRP 2440/2008 2 petition filed under Section 397 and 401 of Code of Criminal Procedure. 2. Though notice was served on first respondent, he did not appear either personally or through a counsel. Records of Chief Judicial Magistrate was called for. Records show that after taking cognizance of the offence and petitioner appeared and was released on bail. First respondent was examined on 31.3.2008 and Exts.P1 to P3 were marked. No other witness was examined or any other document produced. Learned Magistrate, on the materials framed a charge as provided under Section 245 (2) of Code of Criminal Procedure. The argument of learned counsel appearing for petitioner is that even if the deposition of PW1 that Ext.P1 to P3 are accepted as unrebutted, it will not connect petitioner with the offence and therefore learned Magistrate, instead of framing charge as provided under sub- section (2) of Section 245, should have discharged him as provided under sub-section (1) of Section 245 of Code of Criminal Procedure. 3. An offence under Section 379 IPC which provides for a sentence of three years is triable as a warrant case. Learned Magistrate hence is bound to proceed as provided for trial of CRRP 2440/2008 3 warrant case under Chapter XIX of Code of Criminal Procedure. Under Section 244 of Code of Criminal Procedure, in a warrant case instituted otherwise than on a police report, when the accused appears, Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution. Sub-section (2) provides for issue of summons on the application of prosecution to any witness directing him to attend or produce document or other thing. Section 245 of Code of Criminal Procedure provides when accused is to be discharged and when a charge is to be framed, under sub-section (1), if upon taking all evidence referred to in Section 244 of Code of Criminal Procedure, Magistrate considers that no case against accused has been made out, which if unrebutted, would warrant his conviction, shall discharge him, recording the reasons for doing so. Sub-section (2) provides that even at any previous stage, for reasons to be recorded, Magistrate can discharge the accused, if he considers the charge to be groundless. If he is not discharged as provided under Section 245 of Code of Criminal Procedure, Magistrate has to frame charge as provided under Section 246 of Code of Criminal Procedure. It provides that on such evidence, as CRRP 2440/2008 4 provided under Section 244 of Code of Criminal Procedure, Magistrate is of the opinion that there is ground for presuming that the accused has committed an offence, which he is competent to try and could be adequately punished, he shall frame charge in writing against accused. Therefore charge provided under Section 246 of Code of Criminal Procedure could be framed only if Magistrate is of the opinion that there is ground for assuming that accused has committed the offence. If on evidence referred to in Section 244, Magistrate finds that the evidence, if unrebutted, will not warrant his conviction, the accused shall be discharged as provided under Section 245 of Code of Criminal Procedure. The question is whether on the evidence recorded by learned Magistrate as provided under Section 245 of Code of Criminal Procedure, and if evidence stands unrebutted, petitioner could be convicted. 4. As rightly pointed out by learned counsel, even if evidence of PW1 as stated by him is accepted, petitioner cannot be convicted for the offence under Section 379 IPC. The only statement of PW1 is that on the morning of 23.9.2005, he found 220 litres of kerosine kept in six bourels were stolen on the previous night. Ext.P2 complaint filed by petitioner along with CRRP 2440/2008 5 the evidence of PW1 establish that fact. But that will not connect the petitioner with the offence. His further statement is that on getting information that the stolen kerosine were kept at Chulukka estate, along with the police, PW1 reached there and found that kerosine and from the colour of the kerosine, it is clear that it is not available in open market and therefore it is a stolen article. PW1 also deposed that when questioned, it was found that the kerosine was sold to them by the petitioner and when petitioner was questioned, he confessed that it was stolen by him. The alleged confession made by petitioner can only be ignored. There is no other evidence to find that it was the petitioner who sold the kerosine, even if it was found in the Chulukka estate as claimed by the petiitoner. If the case of PW1 is true, he could have produced the records, by summoning the Manager or other authorised person of Chulukka estate to prove that the kerosine was purchased by them from the petitioner. None from the Chulukka estate was examined. There is no other material to show that kerosine if any found at the estate was sold by the petitioner. There is no case for first respondent that there was any eye witness to the alleged theft. In such circumstances, it is a fit case where learned Magistrate should CRRP 2440/2008 6 have discharged the petitioner as provided under Section 245(1) of Code of Criminal Procedure as there is no evidence to connect the petitioner with the offence alleged and the evidence recorded by learned Magistrate under Section 244 of Code of Criminal Procedure, even if accepted unrebutted, will not be sufficient to warrant a conviction. Revision is allowed. The order framing charge is set aside. Petitioner is discharged under Section 245(1) of Code of Criminal Procedure. M.SASIDHARAN NAMBIAR, JUDGE lgk/-