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State of Kerala Vs. Sebastian - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1983CriLJ416
AppellantState of Kerala
RespondentSebastian
Cases ReferredBalakrishnan v. Rajamma
Excerpt:
- - 5. it is really regretful that the magistrate has failed to bestow due care and attention and properly understand the relevant provisions of law in this regard. there is no provision in the code which permits the review of an order like this. 840 :1978 cri lj noc 19 are no more good law in view of the decision of the supreme court in state of orissa v......allowed.2. these orders are strongly assailed on behalf of the state on the grounds that the orders passed by the magistrate are illegal and without jurisdiction and that the statement made by him that the petition was not opposed is not true.3. shri p. m. namboodiri, assistant public prosecutor, who was appearing in the case on behalf of the prosecution has filed an affidavit before this court stating that he had opposed both the petitions before the magistrate on grounds of 'law and propriety,' and that he pointed out that there cannot be a discharge when once charge is framed against the accused and that the criminal court has no power to review its own orders, and that the statement of the magistrate in his order on m. p. no. 3616 of 1979 that the petition was not opposed is.....
Judgment:
ORDER

S.K. Kader, J.

1. The State has filed this revision petition seeking to revise an order passed by the Judicial Magistrate of First Class, Cochin, discharging the accused-respondent in C. C. No 83 of 1979, after framing charges against him. The police after due investigation laid a charge-sheet against the respondent herein and two others alleging that they committed offences punishable under Sections 406, 477-A read, with Section 34 I.P.C. Copies of documents as contemplated under Section 207 Cr. P.C. were given to the accused persons. The Magistrate after due compliance of the provisions in Sees. 239 and 240 Cr. P.C. framed charges against the respondent under Sees. 406 and 477-A I.P.C. and discharged the other two accused. The charge was read over and explained to the respondent and thereafter the case was posted for hearing on 26-10-1979, on which day the respondent filed two petitions, one in English and another in Malayalam, praying that he may be discharged. The petition filed in English was taken on file as M. P. No, 3615 of 1979. while the other was taken on file as M. P. No. 3616 of 1979. On 6-11-1979, the petition filed by the respondent in English was disposed of by the following one word order. 'Allowed.' The other petition in Malayalam was disposed of on 2-11-1979 with a cryptic order 'Heard, Not opposed. Allowed.

2. These orders are strongly assailed on behalf of the State on the grounds that the orders passed by the Magistrate are illegal and without jurisdiction and that the statement made by him that the petition was not opposed is not true.

3. Shri P. M. Namboodiri, Assistant Public Prosecutor, who was appearing in the case on behalf of the prosecution has filed an affidavit before this Court stating that he had opposed both the petitions before the Magistrate on grounds of 'law and propriety,' and that he pointed out that there cannot be a discharge when once charge is framed against the accused and that the criminal court has no power to review its own orders, and that the statement of the Magistrate in his order on M. P. No. 3616 of 1979 that the petition was not opposed is not true.

4. At the time when this petition came up for hearing, the learned advocate appearing for the respondent fairly and frankly submitted that he found it difficult to support the orders passed by the Magistrate and that a proper order that could be passed after framing of a charge against an accused person is only on order of conviction or acquittal.

5. It is really regretful that the Magistrate has failed to bestow due care and attention and properly understand the relevant provisions of law in this regard. This is a case where the learned Magistrate acted under Section 240, Cr. P.C. and on a due consideration of the available materials on record found that there was ground for presuming that the respondent has committed an offence which he is competent to try and which, in his opinion could be adequately punished by him, and thereafter framed a charge. The grounds taken by the respondent in both the petitions are that the documents and other evidence were not properly considered by the Magistrate and that the Magistrate did not grant him an opportunity to address his argument before framing a charge. The record available in this case will show that these grounds have no substance and are unsustainable. I have already stated that an affidavit has been filed by the Assistant public Prosecutor detailing the circumstances under which a charge was framed against the respondent and the two orders under attack have been passed. If it was really a case where the Magistrate has not properly considered the materials on record and did not give the respondent an opportunity to address his arguments, the remedy was to take appropriate steps to get the charge framed quashed. This not having been done, the respondent approached the trial court Itself with a noval and curious procedure by filing two petitions containing the same facts and asking for the identical relief. It is all the more surprising that the learned Magistrate took these petitions one by one on different dates and passed orders as stated above and that in the petition filed by the respondent in English the only order passed is 'allowed' and there is no statement that the petition was not opposed. Even if it is assumed for the sake of argument, that the statement that the petition was not opposed is true, the Magistrate cannot commit an illegality by the consent of either the Assistant Public Prosecutor or the accused. This apart, the Magistrate has not even written a speaking order on these petitions. The orders are cryptic and highly unsatisfactory. After framing a charge against an accused in a criminal case, the only order that could be passed is either an order of conviction or acquittal and not an order of discharge. The trial of the instant case is governed by Sections 238 - 243 Cr. p. C. and Section 248, Cr. P.C. After framing a charge under Section 240. Cr. p. C. the Magistrate has to proceed under Section 242, Cr. P.C. and under Sub-section (3) of that section the Magistrate is bound to proceed to take all such evidence as may be produced in support of the prosecution. This provision and the provisions in Sub-sections (i) and (2) of Section 245, Cr. P.C. are mandatory. It is only after due compliance of the provisions in Sections 242 and 243, that an order of conviction or acquittal can be passed under Section 248, Cr. P.C. Framing of a charge against an accused is an order or decision affecting the interest of the accused. There is no provision in the Code which permits the review of an order like this. The decisions reported in Rajan v. Vijayan 1970 Ker LT 495 : 1970 Cri LJ 1547 and Kunhammed v. Abdulkader 1977 Ker L.T. 840 : 1978 Cri LJ NOC 19 are no more good law in view of the decision of the Supreme Court in State of Orissa v. Ram Chander Agarwala : 1979CriLJ33 . The Magistrate also cannot invoke inherent powers for setting aside the charge already framed by him. Janaki Amma, J. in Balakrishnan v. Rajamma 1979 Ker LT 502 held that the express mention of inherent power in respect of the High Court implies that subordinate courts have no such power and that in the absence of inherent power, the Subordinate Criminal Courts are not competent to reverse their own orders in view of S 362, Cr. P.C.

6. Trial in the legal sense, commences in a warrant case only after framing of a charge against an accused person. Thereafter the Magistrate is bound to proceed with the trial in accordance with the provisions of the Cr. P.C. and conclude the trial either by an order of conviction or an order of acquittal. There is no provision of law which enables a Magistrate to dismiss the complaint or pass an order of discharge in a warrant case after framing a charge. A Magistrate cannot in such a case alter the legal position by calling or describing the order as one of discharge or dismissal of - the complaint. In substance and effect such an order is one of acquittal. The proper remedy for the State was therefore to file an appeal against the order under attack. A right of appeal is a creature of statute and carries with it a right of rehearing on law as also on facts. Generally there is no right of hearing on facts or appreciation of evidence in a revision.

7. It was submitted on behalf of the State that it was under a bona fide erroneous belief that the order impugned is really one of discharge that a revision was filed and therefore this Court may be pleased to treat this as an appeal. Revisional Jurisdiction conferred under Section 401, Cr. p. C. is very wide and cannot therefore be lightly exercised. Powers under this section can be exercised where interests of public justice require interference for the correction of a manifest illegally or the prevention of a grass miscarriage of justice. The whole matter has now been brought to the notice of this Court on the revisional side. Notwithstanding the bar or exceptions contained in Section 401, Cr. P.C., the High Court has jurisdiction suo motu to set aside an illegal order of acquittal in exercise of the re-visional powers. It is not disputed that this petition hag been filed within the period of limitation prescribed for filing an appeal against an order of acquittal. On the facts and in the circumstances of this case, by virtue of the provision in Sub-section (5) of Section 401, Cr. P.C., this Court can treat this revision as an appeal. It makes no difference and is of no serious consequence, whether this petition is heard as a petition of appeal or revision, as the orders under challenge are manifestly and glaringly illegal and are passed without jurisdiction.

8. The whole procedure adopted by the Magistrate is thoroughly unsatisfactory and appears to be strange and abnormal. It is really unfortunate that the Assistant Public Prosecutor had to file an affidavit before this Court controverting a statement attributed to him in an order passed by the Magistrate.

In the result, the orders impugned are hereby set aside and the case is sent back to the court below for disposal afresh according to law and in the light of this order.


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