XAVIER Vs. VINCENT RAJ ALIAS MARIA VINCENT RAJ

JUDGEMENT

(1.) These two Revisions are directed against the orders of discharge by the learned Judicial Magistrate Padmanabhapuram under Section 239 of Criminal Procedure Code in Criminal Miscellaneous Petition No. 5719 of 1991 and Calendar Case No. 126 of 1991. As the learned Judicial Magistrate, Padmanabhapuram allowed the Petition to discharge the accused and the Calendar Case also was ordered discharging the accused, these two revisions have been filed separately against the orders of the learned Judicial Magistrate.

(2.) The respondents herein have been alleged for the commission of the offences under Sections 323 and 325 on 31-7-1990 at 8.00 P.M. and though a complaint was launched in the Police Station Thakkalai the Station Officer without registering the case sent the Revision petitioner the victim to the hospital for treatment and the F.I.R. was registered only on 1-3-1991. The accused who are the respondents herein filed a petition under Section 239 of the Criminal Procedure Code to discharge them on the ground that the allegations made against, them are not true and there are no sufficient grounds to proceed against them The learned Judicial Magistrate after referring to the defects in the prosecution case has ordered for the discharge of the accused.

(3.) The learned counsel appearing for the Revision Petitioner contended that the order of the learned Judicial Magistrate is illegal and contrary to law as the principles enunciated for discharging the accused under Section 239 has not been considered by the learned Judicial Magistrate. On a perusal of the order of the learned Judicial Magistrate I am able to see that he has gone deep into the statements of the witnesses recorded under Section 161 Criminal Procedure Code and the merit of the prosecution case, taking into consideration of the infirmities in the prosecution case even at this stage before framing the charge. The learned Judicial Magistrate has found that though the occurrence said to have been taken place at 8.00 P.M. on 31-7-1990, for which the complaint was received at 1.30 A.M. on 1-8-90, police memo issued to the hospital was dated 31-7-90, which cannot be true and though in the Accident Register only seven injuries are mentioned, whereas in the Wound Certificate sixteen injuries are mentioned and it was not explained as to how PW 1 had sustained sixteen injuries add these discrepancies would lead to the suspicion in the prosecution case. He has also referred to some more discrepancies in the prosecution case. But I feel that the same were not germane at the stage of framing the charge and this is a case in which apart from the victim, two other persons have spoken in their statements before the Police under Section 161 of the Criminal Procedure Code alleging the specific overtacts against these respondents. Inspite of the fact that there is allegation of specific overtacts against the respondents and the victim also was sent to the hospital for treatment and the Medical Certificate also was produced before the Court the learned Judicial Magistrate has gone to discuss about the veracity of the complaint, the delay in registering the complaint and also the alleged suspicious circumstances for certain injuries not found in the Accident Register. Under Section 239 of Criminal Procedure Code upon considering the Police Report and the documents sent with under Section 173 and after making such examination if the Magistrate finds that the charge against the accused is groundless he shall discharge the accused after recording the reasons for doing so. Therefore, the Magistrate must be satisfied that there are no grounds to proceed with for framing the charges for the offences alleged. This aspect has been considered in number of cases by this Court and also by the Supreme Court in Angusamy v. Kaleeswaran Ambalam, (1989 Mad LW (Cri) 108), Ratnavel Pandian, J. (as he then was) after referring to the views of the Supreme Court has observed that :