The main legal point established is that at the stage of S.244, the Magistrate's role is to determine if a prima facie case is made out, not to assess guilt, and the evidence adduced should be considered as if un-rebutted.

G. Sasidharan, J.

This is a petition filed under S.48 2 of the Code of Criminal Procedure, here-in-after referred to as 'the Code', by the complainant in C.C. No. 398 of 1993 on the file of the Judicial Magistrate of the First Class, Payyannur. Respondents 1 to 8 were the accused in the above case which was taken on file on the basis of the allegation of the petitioner in the complaint filed by him in the Court regarding the commission of the offences under Ss.141, 142, 143, 144, 147, 148, 149, 342, 347 and 306(ii) of the Indian Penal Code. The learned Magistrate after taking evidence under S.244 of the Code, discharged respondents 1 to 8 under S.245(1). There was a revision filed by the present petitioner in the Court of the Sessions Judge, Thalassery, which was dismissed by the learned Additional Sessions Judge on finding that there was no reason for interference in revision. In this petition, the petitioner prays that the order of discharge made by the learned Magistrate and the order of the learned Additional Sessions Judge in revision may be set aside and the learned Magistrate may be directed to proceed with the complaint in accordance with law.

2. Petitioner would allege that he was conducting a Band Set Troupe by name ' Alphonsa B and Set'. He was running the above troupe from 1991 and he would allege that the musical instruments necessary for the troupe were purchased by him and the instructor Scaria from St. Mary's Musical Band, Vellad. According to the petitioner, the troupe was conducting programmes during festivals and respondents 1 to 8 were the members of the troupe. Some of the musical instruments were found stolen and as a result of that respondents 3 to 7 were dismissed from the troupe. After dismissal of the above respondents, the petitioner was running the troupe and practice was being done in the residence of one Mouwanickal Chackochan. The occurrence is alleged to have taken place on 10.3.1993 at about 7.30P.M. The allegation is that petitioner along with his troupe members were going home after rehearsal with the musical instruments and when they reached the way near the house of the 1st respondent, he invited them to his house. Respondents 2 to 8 were present in the house of the 1st respondent and they were having weapons with them. On seeing them, the petitioner and other members of the troupe tried to escape from there and it is alleged that respondents 1 to 8 wrongfully confined them and compelled the petitioner to take back respondents 3 to 7 in the troupe. There is also allegation that the 1st respondent intimidated the petitioner with dire consequences and he also slapped him on his face. The first respondent is alleged to have pulled the shirt of the petitioner and the accusation against the other respondents is that they took away the musical instruments. The statement in the complaint is that musical instruments worth Rs. 7,000/- were taken away by respondents 1 to 8. The private complaint was filed in the Court of the Magistrate, according to the petitioner, because no action was taken by police on a complaint made by him to them. Even though the complaint filed by the petitioner before the Magistrate there was allegation that respondents 1 to 8 committed the offences under Ss.342 and 347 also, the Magistrate took cognizance of the offences under Ss.143, 144, 147, 148, 323, 506(ii) read with S.149 IPC.

3. The learned Magistrate while conducting enquiry under S.202 of the Code issued search warrant for recovering the musical instruments alleged to have been taken away by respondents 1 to 8. The police seized the musical instruments from the house of the first respondent. Claim was made by the petitioner as well as the respondents for interim custody of the musical instruments and the learned Magistrate gave musical instruments back to the first respondent.

4. After respondents 1 to 8 appeared in the trial court, the learned Magistrate proceeded to take evidence under S.244 of the Code.