*HONOURABLE Dr. JUSTICE B. SIVA SANKARA RAO
+CRIMINAL REVISION CASE No.1212 of 2013
% Dated 25.11.2014
Between:
#K.Prabhakar Rao and others ...Petitioners and
$ The State of A.P. rep. by Public Prosecutor,
High Court of A.P.Hyderabad, and another ….Respondents ! Counsel for the Petitioner : Sri M.V.S.Suresh Kumar ^ Counsel for respondent No.1 : The Public Prosecutor Counsel for the respondent No.2/ Complainant : Sri P.Vikram < GIST : ---
>HEAD NOTE : ---
? Cases referred: :
1. 2006 Crl.L.J. 1447
2. 2004 AIR SCW 5174
3. (2004) 13 SCC 324
4. 1992(1) SCC 217
5. (1998) Crl.L.J.231 A.P.
6. AIR 1966 SC 22
THE HONOURABLE Dr.JUSTICE B.SIVA SANKARA RAO CRIMINAL REVISION CASE No.1212 of 2013
ORDER:
This Criminal Revision Case which involves the scope of Section 258 Cr.P.C.(stoppage of criminal proceedings) is filed under Sections 397 and 401 Cr.P.C by the petitioners-A.1 to A.3, having been aggrieved by the dismissal order, dated 10.05.2013 of the learned Special Magistrate Court-II, Rajendra Nagar, Ranga Reddy district, in Crl.M.P.No.459 of 2013 in C.C.No.01 of 2013(Old C.C.No.48 of 2013) filed under Section 258 read with Section 251 of Cr.P.C. seeking to pass an order of their release.
2. The averments in the petition of the revision petitioners-A.1 to A.3 in Crl.M.P.No.459 of 2013 are that they are office bearers of an approved and registered gated community named “ Lalitha Bloomfield Home Owners Association”(in brief ‘the Association’) comprising of 45 villas, situated in Survey No.4, Khajaguda, Ranga Reddy district. A.1 is the President, A.2 is the General Secretary and A.3 is the Facility Manager of the Association, that their community’s security gate is operated as per the procedure laid down by the Association with the approval of its members, that on 11.08.2011 the defacto-complainant and his men tried to grab their green belt/park area adjacent to Villa No.22 in their lay out and he did so at the behest of employer and developer of their(petitioners) lay out M/s Vasudeva Realtors Private Limited, that they and other community members requested to stop the illegal construction in their green belt/park are but in vain, that they called up GHMC immediately who had come down and stopped the construction, that they then lodged formal complaints with GHMC and police but no action was taken yet, that they subsequently followed it up with a writ petition (W.P.No.23444 of 2012) with High Court and the High Court was pleased to issue a stay order on the same staying all constructions in the green belt and park area of their community including Villa No.22 and the matter is still pending with the High Court for final order, that the complainant herein has fabricated this false case to take revenge for preventing illegal encroachment by abusing the sacred judicial process, that Section 262 of Cr.P.C. clearly states the procedure to be adopted in Summary trials is same as the summons case and as per Section 258 of Cr.P.C. the procedure for summons case as provided XX includes the power to stop proceedings at any stage and release the accused if there are no sufficient materials on record against the accused, that no offences under Sections 339/341 and 503/506 is made out, that there is falsity of the police report and the witnesses statements, hence prayed to release them.
3. The learned trial Judge, on hearing both sides, through order dated 10.05.2013 dismissed the petition.
4. Impugning the said order, the accused filed this revision with the grounds that the order of the trial Court is contrary to law, evidence on record and probabilities of the case, that the trial judge failed to appreciate that neither the complaint, the witness statements nor the chargesheet show that the ingredients of the offences alleged to have been committed under Sections 341 and 506 are present, that the trial judge failed to notice that the witness statements clearly show that none of the accused was physically present at the entry gate of Lalitha Bloomfield gated community and therefore the accused could not have committed the offences alleged against them, that the trial Court failed to notice that neither the complaint, the witness statements not the charge sheet shows that the complainant was alarmed or that there was any threat of injury to the complainant or any one else, that the trial Judge failed to see that none of the witness statements states that the accused were at Villa No.22 of Lalitha Bloomfield gated community at the time of the alleged incident, that the trial Court failed to see that Bhaskar, whose witness statement is sought to be relied on in the charge sheet, was not present on the date of which the offence was committed at the layout and this fact was adequately proved by the security staff register that was provided by the accused, that the trial Judge failed to appreciate that the Investigating officer has evidently failed to file critical documents such as the security register and the reply of the accused dated 22.08.2011 in connection with the summons, which clinchingly establish the innocence of the petitioner, that the trial Judge failed to see that, while offence is alleged to have been committed at Villa No.22, neither the owner nor the neighbours of Villa No.22 have been examined to prove the claim of the complainant, that the trial Judge failed to see that there was no physical restraint or illegal detention of any person and that it was only the auto carrying the material that was sought to be stopped from entering the layout to prevent carrying out illegal constructions in Villa No.22 and that these do not constitute an offence under Section 341 I.P.C., that the trial Judge failed to see that the criminal complaint was nothing but means of harassing accused who are responsible office bearers of the Lalitha Bloomfield Home Association and who had followed the due process by filing complaints with the GHMC and subsequently filed Writ Petition against the owners of Villa No.22 and the developer of the community i.e. M/s Vasudeva Realtors Private Limited and obtained stay against the illegal constructions, that the trial Judge failed to see that the witness statements do not corroborate the case of the complainant in as much as the witness statements do not state that the accused were present at Villa No.22 at the time of the alleged incident or that any of the accused threatened the complainant’s men or that the work at Villa No.22 was stopped, that the trial Judge failed to see that the said complaint was nothing but an abuse of process of the law by the complainant, which was instituted at the behest of Vasudeva Realtors Limited and the owner of Villa No.22 and failed to notice that the Complainant is an employee of M/s Vasudeva Realtors Limited and the owner of Villa No.22 is a sister-in-law and a benami of the Managing Director of M/s Vasudeva Realtors Limited, hence to set aside the order dated 10.05.2013 of the learned Special Magistrate Court-II, Rajendra Nagar, Ranga Reddy district, in Crl.M.P.No.459 of 2013 in C.C.No.01 of 2013(Old C.C.No.48 of 2013).
5. Heard both sides and perused the material on record.
6. Now the points that arise for consideration are:
1. Whether the impugned dismissal order, dated 10.05.2013 of the learned Special Magistrate Court-II, Rajendra Nagar, Ranga Reddy district, in Crl.M.P.No.459 of 2013 in C.C.No.01 of 2013(Old C.C.No.48 of 2013) is unsustainable and requires interference by this Court while sitting in revision, if so, with what observations?
2. To what result? Point No.1:
7. There is no dispute on the maintainability of the revision since the application for discharge filed under Section 258 of Cr.P.C. before the trial Magistrate and the dismissal order impugned in the revision on hand is not interlocutory in nature since effects the substantial rights of the parties as such the revision is maintainable with no bar under Section 397(2) of Cr.P.C. The revision filed impugning the order of the Magistrate in dismissing the application filed under Section 258 of Cr.P.C. read with 262 of Cr.P.C. to stop the proceedings against the accused persons 1 to 3 is mainly from the contention that the accused are the office bearers of the of the Association which is approved and registered gated community and the gated community with 45 villas got security gate. The averment is on 11.08.2011 the defacto-complainant and his men tried to grab the green belt/park area adjacent to Villa No.22 in their lay out at the behest of the Developer Vasudeva Realtors Private Limited and for their unheeding to stop construction and encroachment the GHMC powers were invoked to stop the construction and High Court also in the W.P.No.23444 of 2012 passed order staying construction in the green belt/park area of the community site and it is to take the revenge therefrom the present case is stated to be filed for the alleged offence under Section 341 and 506 of I.P.C. with the averments that besides the same it is important to note the contents of the F.I.R. in Cr.No. 274 of 2011 registered under Section 341, 506 and 290 I.P.C. dated 12.08.2011 by Rayadurgam Police of Cyberabad district as to the place of occurrence at plot No.25, Lalitha Bloomfield of Khajaguda, the complainant was one Ch.Hemchand Naidu of plot No.25 Adithya Nagar, JNTU, Kukatpalli, Balanagar and its members as Vasudeva Realtors of Private Limited, Kukatpalli supra. The averments that Rajendran(A.1) General Secretary and Prabhakar(A.2) President of the Association, obstructed the interior work being carried out at plot No.922 of the owners Mrs. Sujatha, on 11.08.2011 and 12.08.2011 that among the two accused Rajendra (A.2) used filthy language and threatened the workmen and labour and obstructed the material vehicle at 10.30 A.M. with a threat to beat the workmen if they continue work, that again on 12.08.2011 the said Rajendra and Prabhakar (A.1 and A.2) obstructed the work and when the (defacto-complainant) went there both of them used foul language and tried to assault him even they told that they were just carrying interior works A.1and A.2 tried to assault by using foul language and they obstructed the vehicle carrying material bearing No.AP10 U 8079 on 10.30 A.M. on 11.08.2011 and it is after repeated requests they allowed the vehicle in the evening hours 17.00 hours(5.00 P.M.).
8. From the above reading though the F.I.R. need not be encyclopaedia from what is mentioned, Section 349 of I.P.C. has no application as there is no any wrongful restraining of any person but for saying the vehicle with material to take into was not allowed from the morning it was allowed in the evening and his workers were threatened to stop work saying if they continue they would be beaten. No name of the worker even mentioned, there is nothing to mention to say nothing from entering or restraining in any manner. There is nothing even to say how many workers were there. There is nothing even to say the place is a public place and it is a public nuisance to attract Section 290 I.P.C. and even coming to Section 506 I.P.C. of criminal intimidation which reads in two parts one is mere criminal intimidation and the other is threat to cause death or grievous hurt. The so called intimidation is not to continue the work and if they continue they would be beaten, whether that constitutes intimidation or not of its workers to allegedly the victims or sufferers that to say. What the defacto-complainant in his report stated is that, on 12.08.2011 the said accused persons Prabhakar and Rajender supra when he went there to the plot No.22 used foul language and tried to assault to him. It is not a case that he was assaulted and there is no mention of what is the foul language they used even in all the sections to attract against the accused in so far as the alleged victimisation of him. It is the said crime that is investigated and the police filed final report in the form of charge sheet on 07.01.2013 that was taken on file on 29.01.2013 for the offence under Section 341 and 506 of I.P.C. as the charge sheet is filed under both the sections against the A.1 to A.3 though the report speaks only two persons Rajender and Prabhakar(A.1 and A.2). The witnesses examined besides defacto-complainant-Ch.Hemachand naidu are Mahesh, Bhasker (mason). The security guard of the Lalitha Bloomfield, the Security Guard alleged vehicle not allowed to enter inside is at security post thereby security guard, evidence is not on which held but for alleged Mason Bhasker if at all. So far as the alleged threatening to beat if not stop work as stated supra F.I.R. did not name the said Bhasker so called missing or miscarry work. The FIR speaks coolies were threatened to beat if they did not stop work whereas it is here in the chargesheet there is one isolated witness the alleged worker shown. Even the cahrgershset speaks as if labourers were stopped by L.W.2 the Security Guard at the main gate of the Lalitha Bloomfield, it is practically to say the Security Guard if at all stopped and not by A.2 and A.1 supra from reading of page 1 of para-4 of the chargesheet contents. What the Security Guard allegedly stated is president and General Secretary and Members of the Association instructed the Security Guard to stop and labour to proceed the Plot No.22 belongs to Smt. Sujatha. In fact, the very report says the labourers were not stopped at the gate but only the auto with material by the Security Guard under the labourer allegedly at plot No.22 of Sujatha threatened to stop work else to beat. Whereas, the chargesheet speaks a different story supra and there is nothing even to show from the statements of the so called witness L.W.1 defacto complainant or L.W.3 the masonary worker, leave about L.W.2 watchman of Security guard of any of the L.W.2 or L.W.3 or other workers are panicked by the so called threats by any of the accused to attract the offence under Section 506 of I.P.C. criminal intimidation even to take cognizance under Section 506, leave about under Section 341 has no application when there is no obstruction of the persons but obstruction of material. It is after taken cognizance and summoning of the accused they filed the application for stopping of proceedings. It is also important to note in this context from the material placed before the trial Court that the Association comprising of accused persons of its Executive Department addressed GHMC on 12.08.2011 complaining that the villa No.22 owner is trying to encroach and making construction in the open place at the northern of the lay out for public use which is also a green belt into the park space, hence to stop construction. There is another complaint on 16.08.2011 and again on 02.12.2011 and even again on 09.01.2012,26.01.2012 and 13.02.2014 to the GHMC by one of the plot owners Villa No.22. The police in the course of investigation of the above Cr.No.274 of 2011 when issued notice for appearance to the accused persons herein and also to one Sathyanarayana—A.3, they addressed reply stating that the defacto-complainant Hemchand Naidu stated to withdraw the said complaint, hence, to close the same and they are going to attend and cooperate for investigation as and when required in future. When the factual matrix even the application to stop proceedings filed by the accused persons before the learned Magistrate, the same was dismissed with a stroke in a single sentence under the impugned order dated 10.05.2013 which reads “ Heard the counsel and the learned APPO. There is no ground to entertain the petition. Hence the petition is dismissed.” There is nothing even taken what is the material that attracts any of the penal sections against any of the accused from the so called hearing. Now whether the impugned order sustainability or not concerned, it is squarely unsustainable for a single line order without reasons but for to say however, sitting in revision against which whether the proceedings can be stopped and what order that can be passed. The counsel for the revision petitioners/accused places reliance on the expression of the Kerala High court in Dr.Kamala Rajaram Vs. D.Y.S.P.
[1]
Office of the S.P.(Rural) wherein the offence under Section 304-A I.P.C. for the so called medical negligence includes of the doctor-the petitioner before the Magistrate, said doctor filed application to stop proceedings under Section 251 and 258 of Cr.P.C. in the summons case, instituted on police report with final report taken cognizance supra. It was observed that Section 258 of Cr.P.C. necessarily be held to clothe the Magistrate to stop proceedings by its discontinuation under Section 258 read with 251 of Cr.P.C. even before examination of accused, if there be no sufficient allegations and material to justify continuation of the proceedings for the alleged offence as it is not a case of private complaint but a case of police report and its investigation and filing of chargesheet taken cognizance. The principle of law laid down therein is that the Magistrate got powers to stop proceedings if there is no material in a summons case instituted otherwise than a private complaint after taken cognizance and even at the stage for examination of accused under Section 251 of Cr.P.C. from their appearance seeking to stop proceedings which tantamounts to discharge under Section 258 of Cr.P.C. it was held to arrive the said conclusion irrespective of what laid down in Adalath
[2]
Prasad Vs. Rooplal Jindalal . In fact, the learned counsel for the defacto complainant who is 2nd respondent to the revision petition places reliance on said Adalath Prasad supra that was followed in
[3]
Subramanium Sethuraman Vs. State of Maharashtra (three judge Bench) where it was held that the issuance of process in a private complaint under section 204 of Cr.P.C. is a preliminary step in crime contemplated in Chapter XX of Cr.P.C. covered by section 251 to 259 and therefore is interlocutory order and the same cannot be reviewed, reconsidered or recalled by the Magistrate, for there being no provision therefrom in the Court and the only remedy available to an aggrieved accused is an extraordinary under Section 482 of Cr.P.C. and not by any application to recall the summons or to seek discharge as discharge is not even contemplated like under Section 239 of Cr.P.C. police warrant case in a summons case as held in Adalath Prasad supra. It was held that once plea of accused is recorded under Section 252 of Cr.P.C. contemplated under Chapter XX (251 to 259) has to be followed which is to take the trial to its logical conclusion. It was a case under Section 138 of the N.I. Act outcome of a private complaint the accused company challenged the validity of the statutory notice under Section 138 of the N.I.Act issued and also the post-cognizance process issued for appearance to the accused and it was observed that validity of the statutory notice is to be considered at trial stage or the conclusion arrived at the High Court and Supreme Court in the earlier proceedings and again the accused came with under Section 482 of Cr.P.C. the Supreme Court observed that the accused in the earlier proceedings also successfully managed to keep trial in abeyance of the complaint case initiated in the year 1996, hence cannot be prevented from taking recourse to a remedy available in law. Even the permission sought by him to file an application under Section 482 of Cr.P.C. earlier not granted by the Supreme Court. However, even Section 482 of Cr.P.C. is maintainable to conduct of the accused cannot be ignored in deciding the same or the conclusion. It was in saying issuing summons is an order interlocutory in nature that can, no doubt, be challenged under Section 482 of Cr.P.C., not by filing application before Magistrate to recall the summons or to seek for discharge. The Apex Court in Subramanium Sethuraman(supra) not only referred Adalath Prasad but also earlier
[4]
expression K.M.Mathew Vs. State of Kerala wherein held that the Magistrate taking cognizance and issuing process to the accused can recall the said process in the event of the summons accused showing the Court that the issuance of process was legally impermissible where the statutory notice for the cheque under Section 138 of the N.I. Act is issued even found not in conformity with the requirements of the law by deferring with the conclusion of K.M.Mathew (supra) and by referring to the three judge bench expression in Adalath Prasad and Subramanium Sethuraman(supra), the Court arrived the said conclusion it was no doubt argued in Subramanium (supra) that the Adalath Prasad case, the three judge bench proceed in that case which is a warrant case on police report under the impugned order conception as if summons case and it was also contended that High Court went wrong in saying once the accused is examined under Section 251 of Cr.P.C. and his plea of not guilty recorded under Section 250(2) of Cr.P.C. the trial Court has no jurisdiction to entertain application for discharge. It was observed that the Adalath Prasad (supra) is pertaining to warrant case and K.M.Mathew (supra) is pertaining to summons case, but that does not in any manner make the law laid in Adalath Prasad(supra) a bad law. In K.M.Mathew (supra), the Apex Court held that in a summons case process issued under Section 204 of Cr.P.C. it is open to the accused to enter into appearance and specify the Court that there is no allegation in the complaint involving the accused about commission of crime and it is open to the Magistrate to recall process issued against the accused, though there is no provision for recalling the process issued for the Magistrate. In K.M.Mathew case, Court supported its reasons and held that for such act of judicial discretion no specific provision is required. In Appeal said expression of K.M. Mathew(supra) was even considered and held that issuance of process under Section 204 is preliminary step contemplated for trial to proceed under Chapter XX of Cr.P.C. of the summons case and as such it is interlocutory order that cannot be reviewed or reconsidered by the Magistrate for there being no procedure in the Court enabling him and thus it is impermissible for the Magistrate, reconsider his decision to issue process in the absence of specific provision to recall such order.
9. From the above, it is clear that the larger Bench of this Court in Adalath Prasad(supra) bound to accept the correctness of law laid down in K.M.Mathew (supra). Thus reliance of K.M.Mathew(supra) expression cannot be accepted nor any argument passed on it to reconsider the expression in Adalath Prasad(supra). It is therefrom observed that the accused involving summons case covered in Chapter XX of Cr.P.C. and does not contemplate stage of discharge like Section 239 of Cr.P.C. in providing for a discharge like in a warrant case. Therefore, the High court held correct in its conclusion that once plea of accused is recorded under Section 252 of Cr.P.C. Chapter XX has to be followed, it is to conduct trial to its logical conclusion. As observed in Adalath Prasad(supra), the only remedy available to the aggrieved is to challenge the order in an interlocutory stage by extra ordinary remedy under Section 482 of Cr.P.c. and not by an application to recall summons or to seek discharge for discharge is not contemplated in summons case like in a warrant case specifically covered by Section 239 of Cr.P.C. what in Adalath Prasad (supra) considered that was followed also by other three judge Bench in the three judge bench expression of Subramanium(supra) is that when there is no specific enabling provision to file an application for discharge like in a police warrant case under Section 239 (in a Sessions Case under Section 227), before hearing of charges a discharge application cannot be maintained by the accused questioning after issuance of summons under Section 207 of Cr.P.C. by the Magistrate taken cognizance of a case but for to proceed Chapter XX of Cr.P.C. provided for summons case. The Chapter XX Cr.P.C. deals with trial of summons case by Magistrate are covered by Sections 251 to 259 of Cr.P.C. Chapter XXI Cr.P.C. covered by sections 260 to 265 deals with summary trials. Section 262 Cr.P.C. so far as Summary trials concerned speaks that the procedure specified in the Code for trial of summons case shall be followed except as provided by Sections 260(2), 263, 264 and 265. Here, Chapter XXI we need not go into as it is a C.C.No.1 of 2013 (old C.C.No.48 of 2013) that is taken cognizance and pending to proceed as a summons case for the offences under Sections 341 and 506(part-I) I.P.C. to say Chapter XX that applies after an appearance of the accused as per the summons issued by the Magistrate. It is to say but for extraordinary remedy under Section 482 of Cr.P.C., the accused cannot question the issuance of summons. Here, the accused filed the application to stop proceedings and did not ask for cancelling the summons or for discharge. In fact, among Sections 251 to 259 of Chapter XX of a summons case, Section 251 speaks after appearance or bringing of the accused before the Court, the accused must be informed of the particulars of the offences for which he is facing accusation. It speaks substance of examination to be stated i.e. particulars of the offence of which he is accused and he shall be asked whether he pleads guilty or has any defence to make but it shall not be necessary to frame a formal charge. The wording is very clear that the application of mind by the Court even after taken cognizance and issuing summons to the accused, in bringing to the notice of the accused the particulars of the offence of which he is accused and shall be asked whether he pleads guilty or has any defence to make. It is needless to say in preparing to ask the accused by the Magistrate, he must apply his mind on the accusation once there is an accusation prima facie, he can question whether he pleads guilty or any defence to make; once the is no material, the question of asking as to pleads guilty or defence to make does not arise as held by this Court way back in interpreting scope of Section 251 of Cr.P.C. in Samuel Rajendran M. Vs. K.Krishna Rao
[5]
.
Section 252 Cr.P.C. states conviction on plead of guilty of the accused based when on the substance of accusation the accused is asked whether he pleads guilty or any defence to make as contemplated by Section 252 of Cr.P.C. supra, he can plead guilty, by recording the plea of guilty in the words of accused in description of the Magistrate, the accused can be convicted. As held by the Apex Court in Mahant Kausbalya Das Vs. State of Madras
[6]
, the compliance of Section 251 and 252 mandatory and in violation vitiates the conviction. Section 253 speaks conviction on plea of guilty in the absence of accused in petty cases where summons issued under Section 206 of Cr.P.C. without appearance by the accused, he can plead guilty in writing be transmitted to the Magistrate by post or letter containing plea of guilty or by Messenger equally amount of fine to specify in the summons, on such compliance the Magistrate to convict on his plea of guilty and sentence to pay fine specified in the summons by adjusting the amount transmitted by the accused towards fine. Section 254 of Cr.P.C. speaks the procedure where the accused not convicted under Section 252 or 253 to proceed to hear the prosecution and take all such evidence that may be produced in support of prosecution, and also to hear the accused (Section 313 of Cr.P.C.) and take of such evidence as he produces in his defence and also summon any witness on the application of prosecution or the accused respectively for attendance to give evidence or produce documents or thing or the like. Section 255 speaks after said trial from recording evidence of prosecution and examination of accused from the incriminating evidence of prosecution and after defence of accused if not from hearing arguments pass judgment of acquittal or conviction and where the Magistrate finds that the accused found guilty and sufficient sentence cannot be imposed he can adopt the procedure under Section 325 of Cr.P.C. by sending to the Chief Judicial Magistrate or otherwise apply P.O.Act of Section 350 of Cr.P.C. and if he does not proceed either under Section 325 or 360 or P.O. Act and find guilty and pass sentence according to law.
10. Section 256 speaks for non-appearance or death of complainant, dismissal of the complaint and acquittal of accused, unless for some reason the Magistrate thinks it is proper to examine, post for hearing to some other day. The proviso Section 256 speaks if complainant is represented by pleader or an officer conducting prosecution or where the Magistrate shall is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with the complainant’s personal attendance in proceeding with the accused. Section 257 of Cr.P.C. deals with the withdrawal of complaint by the complainant at any time before final order is passed on permission by Magistrate to withdraw against all or any of the accused by acquitting such of them against whom the complaint is so withdrawn. Section 259 deals with the power of Court to convert summons cases into warrant cases during the course of trial where the offence punishable with imprisonment above six months and where it appears to the Magistrate that interest of justice requires to conduct the trial as a warrant case for the Magistrate to re-hear the case as a warrant case and also recall any witness who might have been examined. The other important section remains is Section 258 of Cr.P.C. which speaks in any summons case instituted otherwise than upon a complaint, a Magistrate of the First Class with the permission of Chief Judicial Magistrate, any other Judicial Magistrate, may, for reasons to be recorded by him, to stop proceedings at any stage without pronouncing of any judgment and where such stoppage of proceedings is made after the evidence of the principal witness has been recorded, pronounce a judgment of acquittal, and in any other case release the accused. It is further specified by the Section that such release shall have the effect of discharge.
11. It is important to note that distinction here between discharge and release as laid down by the Apex Court in Subramanium Sethuraman(supra) as well as Adalath Prasad(supra) both three judge bench expressions, that there is no provision for discharge in Chapter XX like specific provision of Section 239 in Chapter XIX or 227 in chapter XVIII.
12. It is true as Chapter XX speaks only release of the accused by stopping proceedings, however, it explains that such release shall have the effect of discharge. In this context it is also to read Section 300 of Cr.P.C. Section 300 after six Sub sections from its explanation it reads, “ the dismissal of a complaint, or the discharge of accused, is not an acquittal for the purpose of this Section”. However, sub Section 5 of Section 300 of Cr.P.C. specifically provides that “a person discharged under Section 258 shall not be tried again for the same offence except with the consent of the Court by which he was discharged or of any other Court to which the first-mentioned court is subordinate”(What is referred supra out of Chapter XX of the stopping of proceedings and release of accused).
13. Keeping this scope of sub Section 5 of Section 300 and Section 300 with its explanation in mind in so far as Chapter XX Cr.P.C. is concerned, when compared with Chapters XVIII, XIX, and XXI with the Chapter XX where the charges is groundless the accused can be discharged before framing of charges from the hearing before the charges under Chapter XVIII and XIX by virtue of specific provisions under Section 227 and 239 of Cr.P.C. respectively. However, there is no such provision either under Chapter XXI but from the reading of Section 262 Sub Section (1) Cr.P.C. in a summary trial the Chapter XX merely procedure to the extent applicable to be followed and from reading of Chapter XX particularly from Section 258 supra, and from the combined reading of these with the expressions of the Apex Court i n Subramanium and Adalath Prasad(supra), it crystallises that in Chapter XX and XXI like in Chapter XVIII and XIX there is no enabling provision to seek for discharge and equally but for to invoke 482 of Cr.P.C. by approaching High Court, there is no provision enabling Magistrate or the accused after summons were issued, by their appearance before the Court or otherwise to file an application for recall of summons or cancellation of summons but for in the summons case to follow the procedure of Chapter XX which commences from Section 251 of intention to Section 259 detailed supra. Where there is a material from perusal of the accusation against the accused with reference to the penal provisions, then only the accused has to be examined under Section 251 of Cr.P.C. by brining to his notice the particulars of the offence of which he is the accused and put question is pleads guilty or not and once pleads guilty under Section 252 of Cr.P.C. within its discretion, the Court can convict him by recoding the plea in the words of the accused and as laid down in Samuel(Supra) by this Court if the Magistrate after questioning the accused satisfied to question explaining the particulars of the offence and questioning as to pleads guilty or have any defence to make does not arise. It is to say at that stage if there is no offence made out to the satisfaction of the Magistrate, he can release the accused without questioning him for no substance to question from any accusation much less on plea of guilty to convict or by asking to enter any defence since that arise only there is a substance of accusation. In this context, if one reads Section 258, the stoppage itself even without pronouncement of any judgment where the stoppage is made after evidence of the principal witnesses recorded by pronouncement of judgment or acquittal or any other accused by release of accused and such release shall if the effect of discharge and once the release order is passed which has the effect of discharge though there is no provision for discharge though it is not practically discharge and subsequent prosecution is a bar under Section 300(5) of Cr.P.C. Thus for maintaining the application before the Magistrate and questioning the main order in maintaining the revision, there is no bar and the expressions places reliance by the defacto-complainant as 2nd respondent to the revision of Subramanium and Adalath Prasad(supra) not coming in the way as those expressions no way say Chapter XXII procedure cannot be adopted but for saying that procedure to be adopted. Section 251 and 258 referred supra are part of Chapter XX procedure and that is what the Kerala High Court also though not referred either Subramanium Sethuraman or Adalath Prasad or K.M.Mathew or the A.P. High Court expression in Samuel K. Rajendran(supra)-it is clearly laid down from the combined reading of Section 251 and 258 that the Magistrate got power after appearance of the accused while questioning the accused under Section 251 Cr.P.C. to stop proceedings under Section 258 of Cr.P.C. to release the accused from such power is converted by Chapter XX Cr.P.C.
14. From this scope, with reference to the facts supra, even the de- facto complainant not filed any application withdrawing the prosecution to compound the case, from the very FIR and the chargesheet and the statements of the L.Ws. 1 to 3 supra, there is no offence under Section 341 of I.P.C. that attracts for the very report speaks only the vehicle was way laid and not any persons and the so called workers were working at or around Villa No.22 and as per the accused the construction that was asked to stop was not in the Villa No.22 but in the abutting site which is part of green belt/park, and for not stopped construction by unheeding, the accused to protect the communal site were to report to the GHMC. Even coming to the alleged acts whether constitute offence under Section 506 (criminal intimidation) or not concerned, as per Section 503 the intimidation must be such that, it must cause alarm to the complainant or the victim with fear of causing harm or injury to him or them and there is nothing from the material on record to attract even Section 506 I.P.C. Thus, the continuation of proceedings is nothing but futile exercise and once there is no substance of accusation in asking the accused to plead guilty or claim to be tried by questioning under Section 251 of Cr.P.C. but for to stop proceedings by release which tantamounts to discharge even. The learned Magistrate did not advert to this in simply dismissing with a single sentence and apart from the order is not sustainable, the proceedings can be stopped under Section 258 of Cr.P.C. against the accused persons.
15. It is also important to note that, though it is concerned with questioning the taking of cognizance for want of sanction required by law from the expression of the Apex Court in State of Kerala through CBI Vs.G.Nagarajaswamy, it is laid down that even cognizance taken of any offence by the Court once the cognizance taken is not sustainable and that is brought to the notice of the court at any later stage and finding to that effect is permissible as accused is entitled to take the plea at the post- cognizance stage at any time before he was questioned or facing trial or even at the appellate stage. Thus, the application seeking to stop proceedings is otherwise also maintainable. Accordingly, Point No.1 is answered.
Point No.2:
16. In the result, revision is allowed. Criminal proceedings against the petitioners/accused herein are stopped and they are released that tantamount to discharge of them under Section 258 of Cr.P.C. Consequently, miscellaneous petitions, if any, shall stand closed.
Dr. B.SIVA SANKARA RAO J, Dt.25.11.2014.
Note: L.R.Copy to be marked.
B/o vvr [1] [2] [3] [4] [5] [6]
2006 Crl.L.J. 1447
2004 AIR SCW 5174
(2004) 13 SCC 324
1992(1) SCC 217
(1998) Crl.L.J.231 A.P.
AIR 1966 SC 22