KADUTHA KADUTHA Vs. KUNJUPANICKEN KESAVEN

JUDGEMENT

(1.) This is a reference made by the District Magistrate at Kottayam inviting the opinion of this court on the question of the legality of the order passed by the Sub Divisional Magistrate, at Kottayam acquitting accused 2, 3 and 4 in C.C. 635/1951 on the file of his Court. It was a case registered on the basis of a private complaint. The case put forward by the complainant is that accused 1 to 4 wrongfully entered into a coconut garden in S. No. 197/48 of the Kottayam Pakuthy comprising of 14 cents in his possession and enjoyment and committed theft of 150 coconuts on 10.10.1951. The Magistrate accepted the complaint and recorded the sworn statement of the complainant on 11.10.1951, and issued summons to all the four accused persons, obviously indicating that the Magistrate was satisfied that there was a case to be enquired into. On 19.11.1951 all the accused appeared before the court and the Sub Divisional Magistrate is seen to have proceeded straightaway to record the statements of these accused and on the strength of those statements to pass an order of acquittal in favour of accused 2 to 4 and directing the case to proceed against the 1st accused alone. It is significant to note that before proceeding to pass such an order of acquittal the Magistrate did not care to examine the complainant or the witnesses mentioned in the complaint to be examined in proof of the criminal acts attributed to the accused. The Magistrate's order purports to be one under S.245 of the Criminal Procedure Code.

(2.) From the circumstances stated above it is clear that the Magistrate had not even read S.245 before proceeding to act under that Section in passing an order acquitting accused 2 to 4. Clause 1 of that Section states that:-

(3.) The reason stated by the Sub Divisional Magistrate in justification of the order acquitting accused 2 to 4 is still more curious. He has stated that accused 2 and 3 are the sons of the 1st accused and students depending on their father, the 1st accused, and that "I do not think there will be any useful purpose in retaining them as accused in this case". Regarding the 4th accused the learned Magistrate has stated as follows: "The 4th accused is a tree climber who would do the work for any one on hire. There is hardly any necessity of retaining him as an accused in this case which relates to an offence of trespass." It is strange that the First Class Magistrate should have been so ignorant of even the elementary principles of criminal law. He appears to have been under the impression that those who commit offences punishable under law can escape liability for such criminal acts if it is found that such acts were committed by them at the instance of their master or guardians. The Magistrate has not also understood the nature of the offence alleged against the accused. From the complaint and the sworn statement of the complainant it is clear that the case against the accused was one of theft, the act of trespass being alleged as an act leading up to the principal offence of theft. All the same the Magistrate seems to have understood the complaint to be one of simple trespass only. Such patent errors are not likely to be committed if persons with law degree qualification and with some experience at least in the handling of criminal cases are alone selected for appointment as Magistrates. This is a matter which has to be seriously considered by the appointing authorities.