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iype Punnoose Vs. Thoma Thommi and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1954CriLJ220
Appellantiype Punnoose
RespondentThoma Thommi and ors.
Cases ReferredSirkar v. Vidyadharan
Excerpt:
- .....petitioner is that the court below went wrong in discharging the accused without taking his evidence. the complainant filed a schedule of six witnesses on 21-11-1124. the complainant was partly examined on 20-2-1125 and his examination was completed on 25-9-1950. the case was then adjourned for the examination, of witnesses to 30-10-1950. there was no sitting of the court on that day and the case was adjourned to 29-1-1951. on that day also there was no sitting of the court. on the next adjourned date, namely, 12-3-1951, witnesses were not present. it does not appear that steps were issued to the witnesses.the case was again adjourned to 16-4-1951 for the examination of witnesses. on that day also witnesses were not present. ' the diary does not show that steps were issued to the.....
Judgment:
ORDER

Vithayathil, J.

1. The complainant in the Court below is the revision petitioner. The revision is from an order of discharge. The complaint relates to an offence under Section 379, Travancore Penal Code. The Court below discharged the accused under Section 250 (2), Travancore Criminal P. C. corresponding to Section 253(2) of the Indian Code. Although a revision from an order of discharge should ordinarily be filed before the District Magistrate since this Court admitted the revision petition and ordered notice to the counter-petitioners I think that the petition should be disposed of on the merits.

The complaint of the revision petitioner is that the Court below went wrong in discharging the accused without taking his evidence. The complainant filed a schedule of six witnesses on 21-11-1124. The complainant was partly examined on 20-2-1125 and his examination was completed on 25-9-1950. The case was then adjourned for the examination, of witnesses to 30-10-1950. There was no sitting of the Court on that day and the case was adjourned to 29-1-1951. On that day also there was no sitting of the Court. On the next adjourned date, namely, 12-3-1951, witnesses were not present. It does not appear that steps were issued to the witnesses.

The case was again adjourned to 16-4-1951 for the examination of witnesses. On that day also witnesses were not present. ' The diary does not show that steps were issued to the witnesses this time also. The case was again adjourned to 19-5-1951. This time steps were issued to the witnesses but there was no sitting of the Court on. that day. The case was adjourned to 23-6-1951. On that day also there was no sitting of the Court and the case was again adjourned to 28-7-1951. On that day the witnesses were not present. It does not appear that steps have been issued to the witnesses for appearance on that day. The learned Magistrate discharged the accused on that day. One of the reasons given for discharging the accused is that no witnesses were examined on behalf of the complainant. It was also stated that the complaint was groundless.

2. So far as the non-examination of witnesses is concerned, it is clear that it was not due to any fault on the part of the complainant that the witnesses were not examined. It was the duty of the Court to issue steps to the witnesses mentioned in the schedule filed by the complainant. It has been repeatedly held that in warrant cases the Court is bound to take all the evidence of the complainant and that Sub-section (2) of Section 250 (Travancore Code of Criminal Procedure) should not be interpreted in such a way as to permit a Magistrate to dispense with the taking of any evidence. When the complaint 'prima facie' discloses an offence the Magistrate cannot say that the charge is groundless unless he has before him. all the evidence adduced in support of it. The Magistrate will be justified in proceeding under Sub-section (2) of Section 250 only if he is able to come to the conclusion that no offence is disclosed by the complaint or that the allegations contained therein are so transparently baseless as to be incapable of being proved even if the complainant's evidence is allowed to be taken. Vide - 'Mahommed Sheriff v. Abdul Karim' AIR 1928 Mad 129 (1) (A); - 'Mehtab v. Nathu' AIR 1930 Lah 461 (B) and - 'Sirkar v. Vidyadharan' 34 Trav LJ 407 (C).

I do not think that the present is a case of that nature. There is nothing in the evidence of the complainant to show that the allegations contained in the complaint are absolutely baseless. In the circumstances the Court below has gone wrong in discharging the accused without taking the evidence which the complainant was prepared to adduce. The order of the Court below discharging the accused is, therefore, set aside and the case is sent back to the Court below for fresh disposal according to law.

3. The Criminal Revision Petition is allowed.


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