SANTHAMMA RADHAMANY AMMA Vs. KUNJU PILLAI

JUDGEMENT

(1.) This is an application filed under S.482 of the Code of Criminal Procedure by the petitioner who is the de facto complainant in S. T. No. 228/77 on the file of the Judicial Magistrate of I Class. Adoor (Sub Divisional Judicial Magistrate, Adoor), a case instituted on police report, praying that the order of acquittal passed therein may be quashed on the grounds that (1) the acquittal of the accused in the case on the ground that the prosecution failed to produce witnesses is illegal as it was the duty of the court to summon and examine witnesses, whether the prosecution produced witnesses or not; and (2) the only order that the magistrate could have passed in the circumstances was to stop the proceedings under S.258 Cr. P. C. without passing judgment and release the accused which release in effect amounted to a discharge.

(2.) At the time when the petition was taken up for hearing the first respondent and his advocate were absent. Both the grounds urged by the learned advocate appearing for the petitioner cannot be sustained either in law or on the facts of the case. No appeal has been filed against the order of acquittal by the State. Crl. R. P. No. 3/78 was filed by the present petitioner before the Court of Session, Quilon, challenging the order of acquittal and after hearing both sides, the revision petition was dismissed as there was no ground for interference in revision. It was after the dismissal of the revision petition that the petitioner has come up before this Court invoking its powers under S.482 Cr. PC.

(3.) This is a summons case instituted on police report. The offences alleged to have been committed by the accused are those punishable under S.323 and 341 IPC. The allegation was that the accused caught hold of the complainant by her hair and beat her with hands. The judgment of the Trial Court shows that the offence under S.323 being a non cognizable offence, S.341 also was added to make it cognizable; that in spite of the specific directions issued to the police to produce witnesses no witness was produced by them; that the police also did not make any request to the court for issuing summons to any witness and that as there was no evidence in support of the prosecution case, the accused was acquitted. In this case, the accused appeared before court and the particulars of the offences of which he was accused were stated to him and he was asked whether he was pleading guilty or he had any defence to make. The accused pleaded not guilty to the charge framed against him and it was thereafter that the case was posted for hearing, In a summons case the trial commences as soon as the accused appears before court and the particulars of the offence are put to him; while in a warrant case the trial commences after framing of a charge against the accused. This appears to be the settled law and it has been so held by a Full bench of this Court in Food Inspector v. Seetharam Rice and Oil Mills ( 1974 KLT 685 ). Recently in Ratilal Bhanji Mithani v. State of Maharashtra ( AIR 1979 SC 94 ) the Supreme Court held that "the trial in a warrant case starts with the framing of charge; prior to it, the proceedings are only an inquiry." In a case where a trial has commenced against an accused it is concluded either by a conviction or by an acquittal and not by a discharge. The counsel argued that S.255(1) Cr. P. C. has no application to this case, as that section contemplates only a case where the evidence referred to in S.254 has been recorded and not a case where no such evidence has been recorded. What the provisions in S 254 state is that if the magistrate does not convict the accused under S.252 or S.253, he shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution and also to hear the accused and take all such evidence as he produces in his defence. There is nothing in this section which shows or indicates that a magistrate can compel the prosecution to produce evidence. If no evidence was produced or offered as referred to in S.254, the order that could be ordinarily passed is one of acquittal. It was in this connection that the learned advocate contended that in a case like this, the proper order which ought to have been passed by the Trial Court was one under S.258 by releasing the accused and not acquitting him. S.258 is an enabling section and is one to be applied in very special and compelling circumstances. This section deals with the power of a Magistrate of I Class or any other Judicial Magistrate, with the previous sanction of the Chief Judicial Magistrate, to stop the proceedings at any stage without pronouncing any judgment for reasons to be recorded by him. If the magistrate chose to act under the section and stoppage of the proceedings is made after the evidence of the principal witnesses has been recorded, he can pronounce a judgment of acquittal and in any other case, release the accused and such release shall have the effect of discharge. S.258 has no application to the facts of the case and this section is not intended to apply to cases of this nature. There are no peculiar or unusual circumstances which made it difficult or impossible for the Magistrate to proceed with in the normal way under S.254 Cr. P. C.