BALAKRISHNA PILLAI Vs. GOURIKUTTY AMMA

JUDGEMENT

(1.) THE 1st accused in C. C. No. 476/1953 on the file of the First Class Magistrate's Court at Punalur is the petitioner. Himself and the 2nd accused were tried for the offence punishable under S. 354 of the Penal code. Of the 14 witnesses included in the charge-sheet, witnesses Nos. 13 and 14 were Police Officers who were in charge of the investigation of the case. All the remaining 12 witnesses were examined by the Magistrate. After a due appreciation of the evidence of all these witnesses in the light of the outstanding circumstances and probabilities, the trial Magistrate came to the conclusion that the evidence was insufficient to make out a prima facie case against the accused. Accordingly the Magistrate discharged both the accused under S. 253 (1) of the Code of Criminal Procedure. THE State did not choose to challenge that order. But P. W. 1, whose modesty was alleged to have been outraged by the 1st accused, preferred a petition before the District magistrate seeking a revision of the order discharging the accused. THE learned district Magistrate accepted that petition and cancelled the impugned order and directed the First Class Magistrate under S. 436 of the Code of Criminal procedure to proceed further with the trial of the case. THE present revision petition is directed against the District Magistrate's order.

(2.) THE District Magistrate has taken the view that the order of discharge passed by the trial Magistrate without examining the Police Officers is bad in law and cannot be sustained. According to him, the jurisdiction conferred by S. 253 (1) of the Code of Criminal Procedure could be exercised only after examining all the prosecution witnesses. Sub-s. (1) of S. 253 runs as follows: T, upon taking all the evidence referred to in S. 252, and making such examination (if any) of the accused as the Magistrate thinks necessary, he finds that no case against the accused has been made out which, if rebutted, would warrant his conviction, the Magistrate shall discharge him". For understanding the true scope of the expression "taking all the evidence referred to in S. 252" one has necessarily to examine the provisions contained in that section. Sub-s. (1) of that section states that: "when the accused appears or is brought before the magistrate, such Magistrate shall proceed to hear the complainant (if any) and take all such evidence as may be produced in support of the prosecution". What will constitute the evidence in support of the prosecution is explained in sub-s. (2) which runs as follows: "the Magistrate shall ascertain, from the complainant or otherwise, the names of any person likely to be acquainted with the facts of the case and to be able to give evidence for the prosecution, and shall summon to give evidence before himself such of them as he thinks necessary". It is thus clear that what is insisted on by Ss. 252 and 253 is the examination of all the witnesses likely to be acquainted with the facts of the case. It cannot be said that the Police Officers who are to give formal evidence regarding their investigation of the case, also come under this category. It is obvious that these Officers are not directly acquainted with the facts of the case. If is also significant to note that by sub-s. (2) of S. 252 a direction is given to the Magistrate to summon only such of the witnesses who may be able to give evidence about the facts of the case. Thus, it is not correct to say that the failure to examine the two Police Officers who had taken part in the investigation of the case, is an illegality vitiating the order of discharge passed by the trial Magistrate. THE mere fact that the magistrate has purported to act under sub-s. (1) of S. 253 cannot be a reason for ignoring altogether the provision contained in sub-s. (2) of the same section. Both the sub-sections have to be read together because it is clear that sub-s. (2) qualifies sub-s. (1 ). Sub-s. (2) states that: "nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for any reasons to be recorded by such Magistrate, he considers the charge to be groundless". THE reasons contemplated by this sub-section are contained in the order of discharge passed by the Magistrate. In fact, that order is seen to have been passed under S. 253 read as a whole.