SABARIMUTHU ISMALIAS Vs. ARUNAMBALAM

JUDGEMENT

(1.) The accused in C.C. 60 of 1967 on the file of the Sub Divisional Magistrate, Neyyattinkara are the Revision Petitioners. That was a case charged by the Sub Inspector of Police, Kanjiramkulam under S.143, 148, 149 and 379 Indian Penal Code against the Revision Petitioners who are 11 in number. It was alleged that the complainant (witness No. 1 in the charge) was in possession and enjoyment of the Karikarakuzhi Varampu Purayidom with an extent of 2 acres and 65 cents comprised in S. No. 382/13 B of Kulathoor Pakuthy. While he was thus in possession, at about 10 in the night on 3-2-1967 the accused forming themselves into an unlawful assembly with the common object of committing theft of coconuts from the Purayidom entered the property and stole away from there 834 coconuts valued at Rs. 300/-. The complainant got information about the theft, only the next day and immediately he lodged the F. I. statement before the police. The case was registered on the complaint and the stolen coconuts were also recovered by the police. The learned Sub Divisional Magistrate has discharged the accused under S.251(A)(2) Cr. P. C. Against this order of discharge a revision was filed by the complainant before the Sessions Judge Trivandrum and the order has been set aside by the learned Sessions Judge and the case has been remanded to the learned Sub Divisional Magistrate for trial and disposal according to law. It is against this order of the learned Sessions Judge that the accused have come up is in revision before this court.

(2.) The Trial Court in discharging the accused seems to have considered certain documents produced by the accused which according to the learned Sessions, Judge, he was not competent to look into under S.251(A) Cr. P. C. I think the view taken by the learned Sessions Judge is correct and his order cancelling the order of discharge entered by the learned Magistrate has to be upheld. S.251(A)(1) provides that when the accused appears or is brought before a Magistrate at the commencement of the trial, the Magistrate should satisfy himself that the documents referred to in S.173 Cr. P. C. have been furnished to the accused by the police, and sub-s.(2) of S.251(A) provides that if upon consideration of all the documents referred to in S.173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge him. The sub-section thus provides for discharge of the accused without taking any evidence. All that the court is called upon to do before passing such an order of discharge is, to consider the documents referred to in S.173 and also to question the accused if necessary and hear arguments on both sides. The Magistrate can discharge the accused, only if he considers the charge groundless and in doing so the question is whether he is competent to travel beyond the limits of S.173 and consider documents not coming within the ambit of that Section. I think on a construction of the Section, the only materials on which the Magistrate may depend either for purposes of discharging the accused or for framing a charge against him are the documents referred to in S.173. Of course, the Magistrate may consider also the matters emerging from the examination of the accused and the points placed before him both by the accused and the complainant in the course of their arguments. The proceeding preceding an order of discharge under sub-s.(2) is not a trial but only in the nature of an enquiry. It would therefore be improper for the Magistrate to take evidence or consider documents otherwise than those covered by S.173 and weigh such evidence or documents for the purpose of finding or not finding a prima facie case against the accused. The stage is not reached for either party to produce evidence. The only question before the Magistrate at the stage of S.251(A) is to see whether on the materials before him, a charge could be framed or whether the accused could be discharged as there are no grounds for framing a charge. The following observations of the Mysore High Court appearing in Nanjoorkhan v. State of Mysore (AIR 1962 Mysore 106) are pertinent in this connection. The learned Judge observed: