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IN THE HIGH COURT OF KERALA AT ERNAKULAM
N.Nagaresh, J.
Nimmy Mathew – Petitioner
Versus
State Of Kerala, Represented By Public Prosecutor And Ors. – Respondents
CRL.REV.PET NO. 931 OF 2023
Decided On : 09-10-2023
Section 239 of the Code of Criminal Procedure - The petitioner filed an application seeking discharge under this section. The court emphasized that the impugned order should disclose the availability of prima facie materials to constitute the alleged offence. The court also relied on the judgment in Ghulam Hassan Beigh v. Mohammad Maqbool Magrey and others to highlight the standard of evaluation of evidence at the time of framing charges.
Fact of the Case:
The petitioner, the 1st accused in C.C. No.389 of 2021, filed a revision petition against the order rejecting her application for discharge. The petitioner and her husband were accused of misappropriating funds and committing various offences under the IPC. The petitioner sought discharge under Section 239 of the Code of Criminal Procedure. The Chief Judicial Magistrate rejected the application without providing any reasons. The petitioner argued that the order was cryptic and non-speaking, and failed to disclose any prima facie materials to establish the allegations. The Public Prosecutor contended that a mini trial was not warranted at the discharge stage and that the police report disclosed prima facie material. The court set aside the impugned order and directed the Chief Judicial Magistrate to reconsider the application and pass a speaking order within one month.
Finding of the Court:
The court held that the impugned order was devoid of any reason and failed to disclose the materials on which the decision was based. It relied on the judgment in Ghulam Hassan Beigh v. Mohammad Maqbool Magrey and others to emphasize that the court must be satisfied that the evidence collected by the prosecution is sufficient to presume that the accused has committed an offence. The court set aside the impugned order and directed the Chief Judicial Magistrate to reconsider the application and pass a speaking order.
Ratio Decidendi: The court held that the impugned order rejecting the application for discharge should disclose the availability of prima facie materials to constitute the alleged offence. The court emphasized that a mini trial is not warranted at the discharge stage and that the court must be satisfied that the evidence collected by the prosecution is sufficient to presume that the accused has committed an offence.
Result: The court allowed the revision petition, set aside the impugned order, and directed the Chief Judicial Magistrate to reconsider the application and pass a speaking order within one month. The court clarified that it had not pronounced anything on the merit or eligibility of the petitioner for discharge.
ORDER :
The petitioner, who is the 1st accused in C.C. No.389 of 2021 pending trial on the files of the Chief Judicial Magistrate's Court, Alappuzha, is aggrieved by the order dated 25.08.2023 in CMP No.2035 of 2023 in C.C. No.389 of 2021.
2. The Station House Officer, Alappuzha registered Crime No.894 of 2018 against the petitioner for offences punishable under Sections 201, 406, 420, 468 and 471 read with Section 34 IPC. The prosecution alleged that the revision petitioner was the Cashier of Kavitha ITC from 21.04.2014 to 03.03.2016. The 2nd accused is the petitioner's husband who was working as Office Assistant in the Company. Both the husband and wife together, in furtherance of their common intention to cheat the Company, misappropriated an amount of Rs.37,02,753/-and destroyed the receipt books for the relevant period. They have also made alterations and corrections in the cash book. On these premises, the petitioner and her husband were alleged to have committed offences punishable under Sections 201, 406, 420, 468 and 471 read with Section 34 IPC.
3. On receipt of report from the Police, the petitioner filed application under Section 239 of the Code of Criminal Procedure seeking discharge. The Chief Judicial Magistrate considering the application of the petitioner passed the order dated 25.08.2023 rejecting the application for discharge.
4. The counsel for the petitioner would submit that the impugned order dated 25.08.2023 of the Chief Judicial Magistrate is devoid of any reason. The Hon'ble Apex Court in the judgment in Ghulam Hassan Beigh v. Mohammad Maqbool Magrey and others [(2022) SCC Online SC 913] has held that while considering an application for discharge under Section 239 of the Code of Criminal procedure, the court cannot act as a postman. The court has to apply its mind and consider whether there are prima facie materials to establish the allegations. The order of the Chief Judicial Magistrate impugned in this revision petition is a cryptic and non-speaking order. It does not give any reason for rejecting the application for discharge. It does not deal with anything on the evidence available on records.
5. The counsel for the petitioner further submitted that even though marshalling of evidence is not contemplated at the stage of Section 239 of the Code of Criminal procedure, the order of the Chief Judicial Magistrate should disclose the availability of prima facie materials to constitute the offence alleged by the prosecution. The impugned order does not disclose any such material. The impugned order is therefore liable to be set aside.
6. Public Prosecutor entered appearance and resisted the revision petition. The Public Prosecutor submitted that this is a case where a husband and wife have cheated their own employer. The wife was working as Cashier and her husband was acting as an Office Assistant. Both of them swindled lakhs of rupees. It is on the basis of a complaint received from the employer that the proceedings were initiated.
7. The report submitted by the police after a proper investigation would disclose prima facie material pointing towards the guilt of the petitioner. A mini trial is not warranted at the stage of discharge petition. The order of the Chief Judicial Magistrate is not liable to be interfered with on all or any of the grounds urged by the revision petitioner, argued the Public Prosecutor.
8. I have heard the learned counsel for the revision petitioner and the learned Public Prosecutor representing respondents 1 and 2.
9. The specific allegation is that the petitioner along with the 2nd accused, who is her husband, who were working in a private Company, swindled huge amount of money. The police has investigated the matter and submitted a report.
10. When the petitioner urged before the Chief Judicial Magistrate that the complaint and the police report do not disclose any offence and that the petitioner is entitled to discharge, the Chief Judicial Magistrate has disposed of the Section 239 a
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