STATE OF KERALA Vs. RAMANATHA IYER

JUDGEMENT

(1.) This is a reference under S.438 Cr. P.C., made by the learned District Magistrate, Palghat recommending that the order of the Sub Magistrate, Palghat in Calendar Case No. 1500 of 1963 discharging the accused under S.251A(2) be set aside. S.436 Cr. P. C., gives power to the District Magistrate on examining any record under S.435 to make or direct any subordinate Magistrate to make further inquiry into the case of any person accused of an offence who has been discharged. In this case, the Sub Magistrate found the accusation to be groundless and ordered the discharge of the accused. If therefore the District Magistrate himself had the power to make an order proposed, a reference will be incompetent. The question is whether the District Magistrate himself can act under S.436 Cr. P.C. Probably, the learned District Magistrate was of the view that he had no jurisdiction to set aside the order of discharge under S.251A(2) of the Code. As far as I could see there are two decisions which take that view. They are Govindaswamy v. State AIR 1960 AP 391 and another decision of the Assam High Court in Tabarak Ali v. Mantaj Ali 1961 (2) CriLJ 460 following the decision of the Andhra Pradesh High Court.

(2.) S.251A(1) says:

(3.) The question is, was it the intention of sub-s.(2) to S.251A to depart from this rule and make the proceeding preceding a discharge under sub-s.(2) partake the nature of a trial. The words at the commencement of the trial in the sub-section suggest prima facie that a trial starts at the moment the accused appears or is brought before a Magistrate, but on a close scrutiny of the section, it will be seen that no such meaning attaches to the words. What actually transpired before a discharge is made is only that the Magistrate makes sure that the documents contemplated by S.173 are duly furnished to the accused and upon a consideration of those documents and the statement of the accused, if necessary, the Magistrate has to find whether there is ground to frame a charge. There is very little in the nature of a trial. Merely because the word trial has been used is not decisive for holding whether the proceeding amounts to an inquiry or a trial. The word trial is of wide import and is actually used in the Code not in a uniform sense. S.4(1)(k) only defines inquiry as including every inquiry other than a trial conducted under the Code by a Magistrate or court.