IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 13TH OCTOBER 2008 / 21ST ASWINA 1930 Crl.MC.No. 3783 of 2008() ------------------------- RP.25/2002 of I ADDL. SESSIONS COURT, KOLLAM CC.197/2000 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOTTARAKKARA .................... PETITIONERS: RESPONDENTS 2 TO 5 ----------------------------------------- 1. MEENAKSHI, D/O. DAKSHAYANI, VALIYA PANAYIL VEEDU, ODANAVATTOM MURI, ODANAVATTOM VILLAGE, KOTTARAKKARA. 2. THANKAPPAN, S/O. NARAYANAN, VALIYA PANAYIL VEEDU, ODANAVATTOM MURI AND VILLAGE, KOTTARAKKARA. 3. SURESH BABU, VALIYA PANAYIL VEEDU, ODANAVATTOM MURI AND VILLAGE, KOTTARAKKARA. 4. BINDHU, D/O. MEENAKSHI, VALIYA PANAYIL VEEDU, ODANAVATTOM MURI ODANAVATTOM VILLAGE, KOTTARAKKARA. BY ADV. SRI.K.BABU (VETTAKALAYIL) SRI.JOHNSON GOMEZ RESPONDENTS: STATE ------------------------- 1. THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM THROUGH THE SUB INSPECTOR OF POLICE, POOYAPPALLY POLICE STATION, KOLLAM. 2. GOPALAKRISHNAN, S/O. LATE SRI.KUTTAPPAN, GOKULATHIL, ULLIAYCOVIL CHERRY, KOLLAM EAST VILLAGE. R1 BY PUBLIC PROSECUTOR, SRI. S.U. NAZAR. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 13/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ----------------------------------------------- Crl.M.C. No. 3783 OF 2008 ----------------------------------------------- Dated this the 13th day of October, 2008 O R D E R Against the petitioners, the 2nd respondent had filed a private complaint alleging offences punishable, inter alia, under Section 379 read with Section149 IPC. The sworn statements of the complainant and two witnesses were recorded and summons was issued under Section 204 Cr.PC. Accused allegedly entered appearance and pre-charge enquiry under Section 244 was conducted. In such enquiry PWs 1 to 3 were examined. PW1 is the complainant and PWs 2 and 3 are the alleged occurrence witnesses. These witnesses were not cross examined by the accused. Their counsel prayed that the cross examination may be deferred. 2. The case reached the stage of hearing on the question of charge under Section 245 Cr.PC. The complainant was not present. He was repeatedly absent. There upon the learned Magistrate proceeded to pass an order under Section 245 (2) Cr.P.C holding that the charges levelled against the accused are groundless. Crl.M.C. No. 3783 OF 2008 -:2:- 3. The complainant was aggrieved by this order. He went before the learned Sessions Judge to get the said order revised. When the learned Sessions Judge took up the revision for consideration, both the complainant and the petitioners were absent. The learned Sessions Judge proceeded to pass the impugned order. The revision petition was allowed and the order of discharge under Section 245(2) passed by the learned Magistrate was set aside. The learned Magistrate was directed to consider the matter afresh. 4. The petitioners claim to be aggrieved by the impugned order passed by the learned Sessions Judge in revision. It is contended first of all that the learned Sessions Judge did not have any clue of the real dispute between the parties. The learned Sessions Judge wrongly assumed that the order impugned in the revision was an order of dismissal under Section 203 Cr.P.C, where as the order impugned was really only an order of discharge under Section 245 (2) Cr.PC. I totally agree with the learned counsel for the petitioners. I agree that from the impugned order it appears that the learned Sessions Judge did Crl.M.C. No. 3783 OF 2008 -:3:- not have clue of the real nature of the challenge that was raised in the revision petition. Of course it appears that both sides were not there to assist the learned Sessions Judge. But that may be too inadequate a reason for the learned Judge for not correctly appreciating the nature of challenge that was raised in the revision. 5. Though the learned Sessions Judge does appear to have committed gross error in assuming that the order impugned in the revision was one under Section 203 Cr.P.C after considering all the relevant aspects I find that the order passed in revision by the learned Sessions Judge caters to the ends of justice and does not warrant invocation of the jurisdiction under Section 482 Cr.P.C at any rate. No explanation is offered as to why this application under Section 482 Cr.PC is filed and no attempt is made to challenge the order of the learned Sessions Judge in a properly instituted revision under Section 401 Cr.PC. But I am not on that technicality at all. Pre-charege enquiry under Section 244 Cr.PC was conducted. PWs 1 to 3 were examined. They were not cross examined. It is at that stage that the complainant happened to be Crl.M.C. No. 3783 OF 2008 -:4:- absent. Presence or otherwise of the complainant was not of any crucial significance as the pre-charge enquiry under Section 244 Cr.PC had been completed and there was no cross examination of PWs 1 to 3 examined at the stage of Section 244 Cr.PC. 6. Even if there be no cross examination at all, it will be open to the accused persons at the stage of 245(1) Cr.PC to contend that such evidence has not been placed before court which if unrebutted would warrant a conviction. In that event discharge under Section 245(1) Cr.P.C is legally possible, notwithstanding the absence of cross examination. If it is shown to the learned Magistrate that charges are groundless then also there can be discharge under Section 245 (2) Cr.PC. 7. But to effect a discharge under Section 245(1) or 245(2) Cr.PC as the case may be, the learned Magistrate must consider the materials placed before him and then take a decision as to whether discharge under Section 245(1), or as the case may be 245(2) Cr.P.C, is possible or permissible. The order passed by the learned Magistrate has been gone through by me. I have been taken through the relevant observations in paragraph 3 of Crl.M.C. No. 3783 OF 2008 -:5:- the said order. I find only the following references to the evidence of PWs 1 to 3. “On a perusal of the testimonies of PWs 1 to 3 it can be seen that they could not give corroborative versions regarding the occurrence. PWs 2 and 3 the occurrence witnesses could say only about part of the incident.” The only other reference to the evidence of PWs 1 to 3 appears in paragraph 4 in the following words: “The evidence given by PWs 1 to 3 is shabby” 8. I do note that the learned Magistrate has also not alertly applied his mind to the vital concerns and issues which ought to be considered at the stage of 245(1)/245(2) Cr.P.C. I am in these circumstances satisfied that the direction issued by the learned Sessions Judge in revision setting aside the impugned order of discharge under Section 245(2) Cr.P.C passed by the learned Magistrate is perfectly justified and does not warrant any interference by invoking the jurisdiction under Section 482 Cr.PC. 9. Learned counsel for the petitioner submits that certain observations made by the learned Sessions Judge are likely to Crl.M.C. No. 3783 OF 2008 -:6:- operate to the prejudice of the petitioners. It may be made clear that the learned Magistrate must consider the question of discharge under Section 245(1) and or 245(2)Cr.P.C afresh uninfluenced by the observations made in the order passed by the learned Magistrate or the learned Sessions Judge in revision. I find the said request to be absolutely justified. I need only mention that the learned Magistrate must consider afresh whether the petitioners are entitled for discharge under Section 245(1) and/or 245(2) Cr.PC on the basis of the materials placed before the learned Magistrate uninfluenced by any observations made by the learned Magistrate or the learned Sessions Judge in the impugned order. This Crl.M.C is in these circumstances dismissed with the above observations. R. BASANT, JUDGE ttb Crl.M.C. No. 3783 OF 2008 -:7:- Crl.M.C. No. 3783 OF 2008 -:8:- Crl.M.C. No. 3783 OF 2008 -:9:-