IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 9TH DECEMBER 2008 / 18TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 3729 OF 2008(Y) ------------------------------- CC.249/2003 of JUDL.MAGISTRATE OF FIRST CLASS COURT, PAYYANNUR .................... REVN. PETITIONER(S)/COMPLAINANT: ------------------------------------------ ASMA,W/O.AHAMMED, AGED 67 YEARS,KUTTOOR, P.O KUTTOOR,TALIPARAMBA TALUK,KANNUR DISTRICT. BY ADV. SRI.P.R.SREEJITH RESPONDENT(S): RESPONDENTS/ACCUSED 1 TO 3 AND STATE: --------------------------------------------------- 1. JALEEL N,S/O.ISMAIL, AGED 35 YEARS, PERUVAMBA,P.O OLAYAMBADI,KUTTUR VILLAGE, TALIPARAMBA TALUK,KANNUR DISTRICT. 2. GANGADHARAN P.P, S/O.CHIRUKANDAN, AGED 40 YEARS,PERUVAMBA,P.O OLAYAMBADI, KUTTUR VILLAGE,TALIPARAMBA TALUK,KANNUR DISTRICT. 3. VIJAYAN T,S/O.KUNHIRAMAN, AGED 26 YEARS, KULIYAPRAM,P.O., OLAYAMBADI,KUTTUR VILLAGE, TALIPARAMBA TALUK,KANNUR DISTRICT. 4. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. P. RAVEENDRA BABU FOR R4 SRI.V.N.RAMESAN NAMBISAN FOR R3 SRI.M.SASINDRAN FOR R1-2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 09/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO. 3729 OF 2008 ------------------------------------------ Dated this the 9th day of December, 2008 O R D E R Revision is filed challenging the order of discharge passed by Judicial First Class Magistrate, Payyannur in C.C. 249 of 2003 under section 245(2) of Code of Criminal Procedure. Respondents 1 to 3 are the accused. C.C. 249 of 2003 was a case taken cognizance by the learned Magistrate on a protest complaint filed by revision petitioner after the police submitted a refer report. Case of the revision petitioner is that the three accused in furtherance of their common intention committed trespass into his property and also committed theft and thereby committed offences under section 379, 426 and 441 read with section 34 of Indian Penal Code. After issuing summons under section 204 of Cr.P.C., learned Magistrate posted the case C.C.249 of 2003 for recording the evidence of the complainant as provided under section 244 of Cr.P.C. Even though the case was posted on several occasions, for recording the evidence, neither revision petitioner nor any witness was present. Ultimately on 14.11.2006 learned Magistrate discharged the CRRP3729/2008 2 accused holding that as no evidence was adduced and the complainant is constantly absent, the charge against the accused is groundless. It is challenged in this revision filed under section 397 and 401 of Cr.P.C. contending that without considering the complaint, learned Magistrate was not justified in discharging the accused. 2. Learned counsel appearing for revision petitioner and respondents were heard. 3. Relying on the decision of a learned Single Judge (as his Lordship then was) in Manmohan Malhotra Vs. Abdul Salam (1994(1) KLT 365) learned counsel argued that without considering the complaint the Magistrate was not justified in discharging the accused. It was argued that when the complainant disclosed ingredients of the offence, learned Magistrate was not justified in discharging the accused, on the ground that charge against him is groundless. 4. Section 244 of Code of Criminal Procedure provides recording of evidence for prosecution in a case instituted otherwise than on a police report. Under section 244(1) in any warrant case instituted otherwise than on a police report, when the accused appears or is brought before a Magistrate, the CRRP3729/2008 3 Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution. After recording the evidence as provided under section 244, Magistrate has to proceed to the next stage under section 245. Under section 245(1) of Code of Criminal Procedure, if upon taking the evidence contemplated under section 244, Magistrate considers that the evidence if unrebutted would not warrant conviction of the accused, the Magistrate shall discharge him. Sub section 2 enables the Magistrate to discharge an accused at any previous stage, if he considers the charge be groundless. If upon considering the evidence recorded as provided under section 244, the Magistrate is of the opinion that there is ground for proceeding that accused has committed an offence, he shall frame charge as provided under section 246. Therefore when section 244 provides for recording the evidence on the side of the prosecution, sections 245 and 246 provide for consideration of the evidence so recorded and to decide whether the evidence so recorded if unrebutted would warrant conviction of the accused or not. If not accused is to be discharged. On the other hand, if the Magistrate is of the opinion that accused has committed an offence, he has to frame the charge. It cannot be CRRP3729/2008 4 said that when the complainant does not appear at all and as a result Court cannot record the evidence under section 244, Magistrate cannot discharge the accused under section 244(2) of Code of Criminal Procedure finding that case against the accused is groundless. Even after recording the evidence section 245(1) enables the Magistrate to discharge an accused if he finds that even if that evidence stands unrebutted, accused cannot be convicted. If an accused can be discharged at that stage, when the complainant does not adduce any evidence and does not appear, Magistrate is definitely empowered to discharge the accused under section 245(2) taking into consideration the failure of the complainant to appear, in spite of posting the case for recording his evidence on different dates. That exactly is the case herein. There is no case for the revision petitioner that the case was not posted for different dates for recording his evidence. He has also no case that neither revision petitioner nor any of his witnesses was present at any of the posting dates. The fact that revision petitioner is an aged lady, as canvassed by the learned counsel, is not a ground for her failure to make herself available for examination as provided under section 244 of Cr.P.C. The revision petitioner did not seek CRRP3729/2008 5 even an adjournment for recording the evidence. In such circumstances I find no reason to interfere with the order of discharge passed under section 245(2) of Cr.P.C. Revision is dismissed. M. SASIDHARAN NAMBIAR, JUDGE Okb/-