IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 11TH AUGUST 2010 / 20TH SRAVANA 1932 Crl.Rev.Pet.No. 272 of 2002() ----------------------------- CC.779/1992 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOLLAM .................... REVN. PETITIONER/COMPLAINANT: --------------------------------- SOORYALATHA, D/O.SATHEEDEVI AMMA, AYVELIMELATHIL VEEDU, NJARAKKALCHERI, THRIKKARUVA VILLAGE. BY ADV. SRI.P.B.SURESH KUMAR RESPONDENT/ACCUSED: ----------------------- S.S.FIROZ, SUB INSPECTOR OF POLICE, ANCHALUMOODU POLICE STATION, KOLLAM. PUBLIC PROSECUTOR SMT. REKHA C.NAIR ADV. SRI.C.S.ABDUL SAMMAD SRI.V.D.BALAKRISHNA KARTHA FOR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, JUDGE CRL.R.P. NO.272/02 ORDER DATED, 11.8.2010 M.SASIDHARAN NAMBIAR, J. --------------------------- Crl.R.P. No. 272 OF 2002 -------------------------- Dated this the 11th day of August, 2010 O R D E R The complainant in C.C. No.779 of 1992 on the file of the Judicial First Class Magistrate-II, Kollam filed this revision challenging the order passed by the learned Magistrate on 24.1.1997 discharging the accused in compliance with the directions of the honourable Supreme Court in “Common Cause” v. Union of India and Others (1996 (4) SCC 33). Revision petitioner would contend that when the trial has already begun by reading over the particulars of the charge, learned Magistrate should not have discharged the accused applying the direction 2(f) in the Common Cause Case (supra). The petitioner would contend that subsequently the earlier decision in Common Cause Case (supra) was modified by the honourable Supreme Court in “Common Cause” v. Union of India and Others (1996 (6) SCC 775) and by that decision, when the case was protracted by the accused, he is not entitled to be discharged. The petitioner would contend that the delay was caused only by the failure of the respondent/accused to appear before the learned Magistrate and in such circumstances, the order of discharge is illegal. 2. Petitioner, the accused in Crime No.106 of 1992 of the Crl. R.P. No.272/02 2 Anchalummoode police station was produced before the Judicial First Class Magistrate-II, Kollam. She complained that she was beaten by the Sub Inspector. Learned Magistrate recorded the sworn statement of the petitioner and treated the deposition as CMP No.2763 of 1992 and conducted an enquiry under Section 202 of Code of Criminal Procedure. The sworn statement of neighbour of the petitioner was also recorded. Learned Magistrate as per order dated 26.8.1992 took cognizance of the offence under Section 324 and registered the case as C.C. No.779 of 1992 and issued summons. Respondent appeared on 8.10.1992. Proceeding paper shows that on that day bail was granted and particulars of the offence was read over as explained and his pleading of not guilty was recorded and case was posted for production of witnesses. The case was adjourned from time to time and finally on an application filed by the respondent claiming the benefit under the Common Cause Case (supra), the learned Magistrate under the impugned order discharged the respondent. 3. Revision is filed contending that the learned Magistrate should not have granted the benefit to the respondent a police officer, who manhandled a woman, when the learned Magistrate had Crl. R.P. No.272/02 3 taken suo motu proceedings. 4. The learned Magistrate has taken cognizance of the offence under Section 324 of Indian Penal Code on 26.8.1992 after recording the sworn statement of the petitioner and one witness and prima facie being satisfied that it is not a case for dismissal of the complaint under Section 203 of Code of Criminal Procedure. Summons was issued to the witnesses. As rightly found by the learned Magistrate in the impugned order when a complainant has been taken cognizance for the offence under Section 324, learned Magistrate can only proceed following the procedure provided under Chapter XIXB of Code of Criminal Procedure namely cases instituted otherwise than on police report. Under Section 244, the Magistrate is bound to record the evidence of the witnesses and on that evidence, as provided under Section 245 (1), accused is to be discharged if the evidence so recorded is accepted as rebutted. No case has been made out. On the other hand, if there is sufficient evidence for presuming that the accused has committed an offence, he has to frame the charge as provided under Section 246(1) of Code of Criminal Procedure. Question of discharge under Section 246(1) arises only after recording the evidence under Section 244. Similarly Crl. R.P. No.272/02 4 the question of framing of charge under Section 245(1) arises only after recording the evidence under Section 244 and the accused is not discharged under sub section (2) of Section 245. The records of the courts below shows that the learned Magistrate issued summons to the accused on 26.8.1992 after taking cognizance of the offence under Section 324 of Indian Penal Code. When the accused appeared on 8.10.1992, the learned Magistrate can only proceed as provided under Section 244. The charge could be framed only after recording the evidence as provided under Section 244. The sworn statement recorded earlier is not the evidence. Sworn statement recorded at the enquiry stage under Section 202 of Code of Criminal Procedure is not the evidence. Evidence is to be recorded as provided under Section 244 of Code of Criminal Procedure. In the absence of evidence, learned Magistrate could not have framed a charge under Section 246 of the Code of Criminal Procedure. The Magistrate has not recorded any evidence on 8.10.1992. Therefore, as rightly found by the learned Magistrate, though the proceeding paper shows that particulars of the offence was read over and explained to the accused on 8.10.1992, in law there cannot be a charge on 8.10.1992, as framing of the charge would arise only after Crl. R.P. No.272/02 5 recording the evidence of the complainant and his witnesses. The proceeding paper shows that though evidence of complainant was recorded, no other witness was examined and the case was being adjourned for one reason or the other for examining the witnesses. Even though cognizance was taken on 8.10.1992, even on 24.1.1997, when the accused was discharged in view of the decision of the honourable Supreme Court in Common Cause Case (supra), trial has not commenced. The directions under 2(f) reads thus: “(f) Where the cases pending in criminal courts under IPC or any other law for the time being in force are punishable with imprisonment up to three years, with or without fine, and if such pendency is for more than two years and if in such cases trials have still not commenced, the criminal court shall discharge or acquit the accused, as the case may be, and close such cases.” 5. As rightly found by the learned Magistrate, clause 2(f) squarely applies to the facts of the case. Though the learned counsel appearing for the petitioner argued that the delay was on account of the failure of the accused to appear and so he is not entitled to take advantage of his own mistake, the proceeding paper does not support the submissions. True, respondent did not appear before the Chief Judicial Magistrate on several posting dates. The petitioner was examined on 27.1.1996 even though the respondent was absent. Therefore, the failure to record the evidence of the Crl. R.P. No.272/02 6 witnesses was not due to the failure of the respondent to appear. Even in the absence of the respondent, when he has already filed an application to dispense with his presence, learned Magistrate could have recorded the evidence. The proceedings of the learned Magistrate on 27.1.1996 establishes that after the evidence of the petitioner was recorded, Magistrate directed petitioner to produce the witnesses. The proceeding paper shows that witnesses was not present thereafter. In such circumstances, the delay in disposing the case was not on account of the conduct of the respondent, as canvassed by the learned counsel appearing for the petitioner. In such circumstances, I find no illegality or irregularity in the order of discharge passed by the learned Magistrate. The revision fails and it is dismissed. M.SASIDHARAN NAMBIAR, (JUDGE) vps Crl. R.P. No.272/02 7 Crl. R.P. No.272/02 8