IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 19TH DECEMBER 2008 / 28TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 3890 of 2008() ------------------------------ CC.209/2002 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, THRISSUR .................... REVN. PETITIONER(S): PETITIONER/COMPLAINANT ------------------------------------------- THE NATIONAL SMALL INDUSTRIES CORPORATION LTD,VISITORS' BUILDING, M.G.ROAD, THRISSUR-4,REPRESENTED BY ITS DEPUTY MANAGER AND POWER OF ATTORNEY HOLDER, N.SETHUMADHAVAN. BY ADV. SRI.K.P.DANDAPANI (SR.) RESPONDENT(S): --------------- 1. LEVINI ARUNAN,D/O.G.ARUNAN, THIRUVULLAKKAVU, EAST NADA, P.O. CHERPPU, THRISSUR NOW RESIDING AT 'LEKHA VIHAR'MAYYANAD P.O.,KOLLAM (WITHIN THE LIMITS OF CHERPPU POLLICE STATION) 2. C.P.SEETHARAM, RELIANCE AYUVEDA NURSING HOME,THIRUVULLAKKAVU, THRISSUR,(WITHIN THE LIMITS OF CHERPPU POLIE STATION) 3. ANTONY OLLUKKARAN, OLLUKKARAN HOUSE, NEAR OVER BRIDGE, OLLUR, THRISSUR (WITHIN THE LIMITS OF OLLUR POLICE STATION) 4. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.M.T.SURESHKUMAR FOR R2 SRI.B.MOHANLAL FOR R1 PUBLIC PROSECUTOR SRI C M NAZAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 19/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ........................................... CRL.R.P.NO. 3890 OF 2008 ............................................ DATED THIS THE 19th DAY OF DECEMBER, 2008 ORDER A private complaint was filed by revision petitioner against respondents 1 to 3 alleging that they committed offences under Section 379, 403, 405 ad 420 read with 34 IPC. Learned Magistrate took cognizance of the offence and issued summons. They appeared and the case was posted for recording the evidence of prosecution under Section 244 of Code of Criminal Procedure. On 26.3.2005, learned Magistrate dismissed the complaint under Section 245(1) of Code of Criminal Procedure. The order reads:- “Complainant and his witnesses have failed to attend before court to adduce evidence. An exemption application is filed for the complainant. As the ground stated for absence appears to be a name sake reason, it is rejected. So accused are discharged under Section 245(1) Cr.P.C”. The order is challenged in this petition as it is illegal. It was pointed out that a petition was filed before learned Magistrate for exemption CRRP 3890/2008 2 of petitioner on the ground that he has to appear in another case before another court and therefore the dismissal of the application under Section 245(1) of Code of Criminal Procedure is illegal. 2. Learned counsel appearing for respondents argued that when the complainant did not adduce any evidence, learned Magistrate was justified in discharging the accused. 3. Section 244 of Code of Criminal Procedure provides for recording the evidence of prosecution. After recording such evidence, sub-section(1) of Section 245 of Code of Criminal Procedure provides that on considering such evidence, if Magistrate finds that no case against accused has been made out which, if unrebutted, would warrant his conviction, Magistrate shall discharge the accused. That discharge under sub-section (1) is after recording the evidence under Section 244 of Code of Criminal Procedure and considering the evidence and finding that even if such evidence stands unrebutted, accused cannot be convicted. Sub-section (2) provides for discharge at any previous stage to the stage under Section 245(1) of Code of Criminal Procedure. Under sub-section (2), if Magistrate considers the charge to be groundless, accused can be discharged after recording reasons for so doing, at any previous stage. Though learned Magistrate discharged the accused under Sub-section (2) of Section 245 of Code of Criminal Procedure, evidence of complainant CRRP 3890/2008 3 was not recorded as provided under Section 244 of Code of Criminal Procedure, for whatever be the reason. Hence the discharge cannot be under Section 245(1)of Code of Criminal Procedure . It can only be under sub-section (2) of Section 245 of Code of Criminal Procedure. If it is to be a discharge under Section 245(2) of Code of Criminal Procedure, Magistrate should record reasons and find that he considers the charge groundless. The order does not show that learned Magistrate found the charge groundless. On the other hand, for the sole reason that complainant and witnesses were not present, accused was discharged. The order is illegal especially when complainant had sought an exemption from appearing before court on that day for valid reasons. The order can only be set aside. Revision petition is allowed. The order dated 26.3.2005 discharging the accused in C.C.209 of 2002 on the file of Judicial First Class Magistrate-I, Thrissur is set aside. C.C.209 of 2002 is restored to file. Learned Magistrate is directed to proceed from the stage of Section 244 of Code of Criminal Procedure. Parties are directed to appear before learned Magistrate on 2.2.2009. M.SASIDHARAN NAMBIAR, JUDGE lgk/-