MATHEW PAILY Vs. PRABHAKARAN

JUDGEMENT

(1.) The complainant in C. C. No. 441 of 1978 on the file of the Judicial Magistrate of the II Class, Ernakulam challenges the order of discharge passed by the Magistrate under S.245(2) of the Code of Criminal Procedure (hereinafter referred to as the 'Code').

(2.) On 29-3-1978 the revision petitioner filed a private complaint before the trial Magistrate stating that on 28-3-1978 at about 8.30 a. m. accused (respondents 1 to 7 herein) formed themselves into an unlawful assembly with the common object of committing trespass into his property and committing theft of coconuts, arecanuts, cashew nuts, pineapples, etc. belonging to him and actually committed theft of these fruits of the value of Rs. 200 and the same was done under the instigation of the 7th respondent According to him, there was ill feeling between the parties because he objected to their walking along the canal bund passing through his property, which has been acquired by the Government. The trial Magistrate took cognizance of the case and issued summons. Respondents 1 to 7 appeared before the Magistrate. Pws. 1 and 2 were examined. Pw.3 was partly examined and at that stage, the learned Magistrate stopped the enquiry and passed an order of discharge under S.245(2) of the Code on the ground that the complainant's case is groundless. This order is now challenged in this revision

(3.) The only contention urged at the bar by the learned counsel for the revision petitioner is that when once cognizance was taken and summons was issued under S.201 of the Code, the learned Magistrate had no jurisdiction to pass an order of discharge under S.245(2) of the Code, without receiving the entire evidence produced by the complainant. Consequently, it is argued that the learned Magistrate was not justified in not recording the evidence of all the witnesses cited by the complainant.