IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 13TH JANUARY 2009 / 23RD POUSHA 1930 Crl.Rev.Pet.No. 3400 of 2008(D) ------------------------------- CC.169/2004 of JUDL.MAGISTRATE OF FIRST CLASS COURT, PAYYANNUR .................... REVN. PETITIONER(S): 2ND ACCUSED: --------------------------------- SHAJI JOSEPH, S/O..JOSEPH, MATTATHIL HOUSE, BHEEMANADI P.O., KASARAGODE DIST. BY ADV. SRI.O.V.MANIPRASAD RESPONDENT(S): COMPLAINANT AND THE STATE: ----------------------------------------- 1. VALUPARAMBIL VEETTIL CHACKO, S/O.UTHUPPAN, PRAPOYIL P.O., CHERUPUZHA, KANNUR DISTRICT. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.C.P.PEETHAMBARAN FOR R1 PUBLIC PROSECUTOR SRI C M NAZAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 13/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ........................................... CRL.R.P.NO. 3400 OF 2008 ............................................ DATED THIS THE 13th DAY OF JANUARY, 2009 ORDER Revision petitioner is the second accused in C.C.169 of 2004 on the file of Judicial First Class Magistrate, Payyannur. First accused is no more. First respondent is the complainant. As per order dated 8.7.2008, learned Magistrate recorded a finding that there are grounds to proceed against the accused and directed revision petitioner to be present for framing charge. The order is challenged in this petition filed under Section 397 and 401 of Code of Criminal Procedure. 2. Learned counsel appearing for revision petitioner and learned counsel appearing for first respondent were heard. Learned counsel appearing for revision petitioner pointed out that the yardsticks to be applied at the stage of considering the evidence recorded under Section 244 of Code of Criminal Procedure for framing a charge under Section 246 of Code of Criminal Procedure and for discharging an accused under Section 245(1) of Code of Criminal Procedure are entirely different from the yardstick to be applied by the Magistrate under Section 203 of code of Criminal Procedure for dismissing a complaint or for issuing process under Section 204 of Code of Criminal Procedure and as is clear from the order, learned Magistrate did not find the evidence sufficient to frame a charge as it was only CRRP 3400/2008 2 recorded that there are grounds to proceed against the accused and not that he is of the opinion that there is ground for presuming that accused committed the offence triable by him. Learned counsel therefore argued that on the face of it, the order is unsustainable. Reliance was placed on the decision of this court in Kunhali Haji V. State of Kerala (2004(2) KLT 713) and Radha V. Raju(2003(3) KLT 1046). Learned counsel appearing for first respondent argued that there are sufficient materials in the case to form an opinion that revision petitioner committed the offence, though the order is not happily worded and therefore there is no reason to interfere with the order. 3. Section 204 of Code of Criminal Procedure provides that if in the opinion of a Magistrate taking cognizance of an offence, there is sufficient ground for proceeding, summons is to be issued to the accused. Under Section 203 of Code of Criminal Procedure, if after considering the statements on oath of the complainant and the witnesses and the result of an enquiry or investigation, if any under Section 202 of Code of Criminal Procedure, the Magistrate is of opinion that there is no sufficient ground to proceed against the accused, he shall dismiss the complaint. Section 245(1) of Code of Criminal Procedure provides for discharge of an accused in a private complaint after recording evidence under Section 244 of Code of Criminal Procedure. Under sub-section (1) of Section 245, if upon taking all evidence referred to in Section 244 of Code of Criminal CRRP 3400/2008 3 Procedure, the Magistrate considers that no case against the accused has been made out, which if unrebutted, would warrant his conviction, the Magistrate shall discharge him. Under Section 246(1) of Code of Criminal Procedure, if after recording the evidence under Section 244 of Code of Criminal Procedure and considering such evidence, Magistrate is of the opinion that there is ground for presuming that accused has committed an offence triable under Chapter XIX, which the Magistrate is competent to try and in his opinion could be adequately punished by him, he shall frame a charge in writing against the accused. Therefore what is to be considered under Section 246 of Code of Criminal Procedure is not whether there is sufficient materials to proceed against the accused as has been found by learned Magistrate, but whether the evidence recorded under Section 244 of Code of Criminal Procedure, if unrebutted would warrant a conviction of the accused or not. If on accepting such evidence as unrebutted, accused cannot be convicted, it is not a case for proceeding against him by framing charge under Section 246 of Code of Criminal Procedure and instead, has to pass an order of discharge under sub-section (1) of Section 245 of Code of Criminal Procedure. On the other hand, if on such material, Magistrate is of the opinion that there is ground for presuming that accused has committed the offence, then charge is to be framed as provided under Section 246 of Code of Criminal Procedure. The impugned order shows that learned Magistrate did not consider the evidence to find CRRP 3400/2008 4 out whether the evidence, if accepted as unrebutted, would warrant conviction of revision petitioner or that evidence is sufficient to presume that accused has committed the offence. The question is well settled by the decision of this court relied on by learned counsel in Kunhali Haji's case(supra) and Radha's case (supra) and therefore there is no necessity to reiterate the legal position. It is not for this court to consider whether on the evidence an opinion could be formed that accused has committed an offence or not. It is for the learned Magistrate to decide. 4. Revision petition is allowed. The impugned order is set aside. Judicial First Class Magistrate, Payyannur is directed to consider the evidence recorded under Section 244 of Code of Criminal Procedure in the light of the mandate provided under Section 245(1) and 246 of Code of Criminal Procedure and also in the light of the decisions of this court in Kunhali Haji's case and Radha's case and pass appropriate order in accordance with law. If petitioner files an application to dispense his presence, at the time of hearing as provided under Section 245/246 of Code of Criminal Procedure, Magistrate has to grant exemption. M.SASIDHARAN NAMBIAR, JUDGE lgk