IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 9TH JULY 2009 / 18TH ASHADHA 1931 Crl.Rev.Pet.No. 2142 of 2009() ------------------------------------- AGAINST ORDER DT.18.02.2009 IN CC.737/2006 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, TALIPARAMBA .................... REVN. PETITIONER: COMPLAINANT --------------------------------------------- DINU K.JOHN, W/O. K.K.JOHNY, KALLOLIKKAL HOUSE, UDAYAGIRI, ALAKKODE AMSAM, TALIPARAMBA TALUK, KANNUR DIST. BY ADV. MR.O.V.MANIPRASAD RESPONDENTS/STATE & ACCUSED: ---------------------------------------- 1. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. K.K.JOHNY, S/O. KURUVILA KAROTTUPURATHU HOUSE, KELAKAM, KOLAKKAD.P.O. KANNUR DIST. 3. K.K.BABY S/O. KURUVILA, KAROTTUPURATHU HOUSE,MALAYAPADI, KELAKAM, KANNUR DIST. 4. MATHEW.V.S., VADASSERIYIL KALLUVAYAL NACHIYADU AMSOM, KANNUR DIST. 5. FATHER JACOB KUTTIKKATTUKUNNEL, KALLUVAYAL NACHIYADU AMSOM, KANNUR DIST. PUBLIC PROSECUTOR MR. P.P. JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 09/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- Crl.R.P.No.2142 of 2009 --------------------------------------- Dated this 09th day of July 2009 ORDER Heard counsel for petitioner and public prosecutor who took notice for respondent No.1. 2. This revision is in challenge of the order passed by learned Judicial First Class Magistrate Taliparamba in C.C.No.737 of 2006 for offences punishable under secs.451, 387 and 506 (ii) r/w Sec.34 of Penal Code. Respondent Nos.2 to 5 were discharged under section 245(2) of the Code of Criminal Procedure (for short, “the Code”). Case is that on 15-05-05 at about 6.30 p.m respondent Nos.2 to 5 trespassed into the house of petitioner, criminally intimidated her and putting her in fear of death and grievous hurt by showing a dagger obtained her signature in some blank stamp papers. Complaint was filed in the year 2006. Learned magistrate recorded the sworn statement of the petitioner and others took cognizance of the offences took the case on file as C.C.No.737 of 2006. Even as per the submission of learned counsel for petitioner, the case was being posted for recording pre-charge evidence from 2007 onwards. Petitioner did not appear in court on the posting dates. Case was then posted on 08-02-09 with an order that no further time will be granted to the petitioner but on 18-02-09 also, petitioner was absent. Learned counsel submits that an application to excuse absence was filed but Crl.R.P.No.2142 of 2009 2 that was not taken into account. It is also submitted by learned counsel that dismissal is illegal since learned magistrate could not have, with recording evidence or without looking into the allegations in the complaint discharge respondent Nos.2 to 5 under Sec.245(2) of the Code as if the charge is groundless. Learned counsel has placed reliance on decisions in Mathew Paily V. Prabhakaran (1980 KLT 926) and Manmohan Malhotra V. Abdul Salam (1994(1) KLT 365). Under section 245(1) of the Code, the magistrate is empowered to discharge the accused if after taking all evidence referred to in Sec. 244 the magistrate considers that no case against the accused has been made out which, if unrebutted would warrant his conviction. Under sub sec. (2) of Sec.245, the magistrate could discharge the accused at any previous stage of the case if, for reasons to be recorded, the magistrate considers the charge to be groundless.. 3. Therefore, there cannot be any dispute that even without recording pre charge evidence as referred to in Sec.244 of the Code, it is within the power of the magistrate to discharge the accused, at any prior stage if the charge is found to be “groundless”. Then question is when can it be said that charge is “groundless”? 4. In this case, based on the allegation in the complaint and the sworn statement of petitioner and others learned magistrate had taken cognizance of the offences. But the material collected at the Crl.R.P.No.2142 of 2009 3 time of taking cognizance cannot be understood as 'evidence' under Sec.245(i) of the Code. The opinion formed by the magistrate to take cognizance does not bar the magistrate from invoking the power under sub sec.(2) of Sec.245 at a later stage. The decisions relied on by the learned counsel also say so. In this case, it is not disputed that when learned magistrate discharged respondent Nos.2 to 5, there was no 'evidence' before learned magistrate from which it could be said that a case which if unrebutted would warrant conviction of respondent Nos.2 to 5 had been made out. If petitioner has not produced evidence contemplated under secs.244 and 245(i) of the Code, it can be said that the charge is “groundless”. The word “groundless” means, “destitute of foundation, authority or support, having no real cause or reason, unfounded” etc. If that be so, it was well within the power of learned magistrate to hold that the charge against the respondent Nos.2 to 5 is groundless. Learned magistrate has stated in the impugned order that the “complaint is groundless” and that sec.245(2) of the Code is invoked. I do not find any legal infirmity in learned magistrate ordering discharge of respondent Nos. 2 to 5 under sub sec. (2) of 245 of the Code. 5. Then the next question is whether learned magistrate should have discharged respondent Nos.2 to 5 on the relevant day. The case was filed in the year 2006 and as I stated above, respondent Crl.R.P.No.2142 of 2009 4 Nos.2 to 5 appeared in court towards the end of 2007. From then onwards the case was being posted to record pre-charge evidence. Petitioner was getting time continuously. She was not appearing in court as well. Then the case was posted on 18-02-2009 with an order of no further time. That also did not alert the petitioner. She continued to be absent on that day also. Assuming that a petition to excuse absence was submitted that did not oblige learned magistrate to adjourn the case. Learned magistrate, and rightly, has taken into account the trauma of respondent Nos. 2 to 5 being under the threat of a criminal complaint. Petitioner was given more than a year to adduce pre-charge evidence. I am not inclined to think that there is any infirmity in learned magistrate refusing further time. There is no illegality, irregularity or impropriety in the order under challenge. Resultantly this revision petition fails. It is dismissed. THOMAS P JOSEPH, JUDGE Sbna/