The Magistrate cannot discharge the accused before taking evidence as contemplated under Section 254 of the Code of Criminal Procedure.

This revision is preferred by the petitioner/complainant against the order of the Judicial Magistrate II, Poonamallee, dated 27-8-1990 discharging the accused in respect of the charges under Ss. 147, 447, 427 and 506(1) IPC by invoking the provisions under S. 251 of the Code of the criminal procedure

2. The facts of the case are as follows :- The complainant/petitioner has purchased a house site with a stone-house from one Rathinam on 24-2-1989. Since then he had been in possession and enjoyment of the same. The respondents 1 to 13 accused, since gave trouble to the complainant possession of the said property, he filed a suit O.S. No. 484 of 1980 on the file of District Munsif court, Poonamallee and obtained interim injunction restraining the accused from interfering with the possession and enjoyment of the property by the complainant. On 28-3-1989 the complainant also gave a petition to the Superintendent of police, Chingleput and Sub-Inspector of Police, Adambakkam against the accused/respondent informing about the pendency of interim injunction and the efforts of the accused persons to trespass into the said property despite the interim injunction

3. On 15-4-1989 at about 10-00 a.m. when the complainant and his brother went to the land, they saw the accused trespassed into the said land removing the parapet wire fence putting around it by the complainant. On questioning about the highhanded action, the accused threatened the complainant and his brother with dire consequences. This occurrence was witnessed by three more witnesses. Fearing further trouble by the accused, the complainant came to the police station and gave a complaint. Since the police did not take action against the accused, the complainant filed a private complaint on 2-5-1989 before the Judicial Magistrate, II, Poonamallee

4. On 31-5-1989 this complaint was referred to by the Magistrate for the Police Investigation under S. 156(3) of the Code of the Criminal Procedure. On receipt of this complaint, the sub-Inspector of Police, Adambakkam registered a case in crime No. 479 of 1989 for the offences under Ss. 147, 447, 427 and 506(1) IPC. After the investigation the Sub-Inspector of Police filed a charge sheet against the respondents/accused on 31-5-89 before the Learned Judicial Magistrate, II, Poonamallee, for the offences under Ss. 147, 447, 427 and 506(1) IPC and the same was taken on file in CC No. 103 of 1990 on 19-2-1990 for the abovesaid offences. On service of summons, the respondents filed an application for discharge on 22-6-1990 under S. 251 read with S. 255(1) of the Code of the Criminal Procedures on the ground that the contents of the accusations levelled in the charge sheet against them is false and the question of possession in respect of the land has to be dealt with by the civil Court in O.S. No. 484 of 1980 on the file of District Munsif, Poonamallee. On 19-7-1990 written objection was filed by APP on behalf of the police contending that the question of trespass and the act of causing damage and the criminal intimidation could be decided only by the trial Court and the materials, placed before it and therefore the application for discharge was not maintainable

5. After hearing the respective parties, the learned Magistrate passed an order discharging the accused, by elaborately considering the merits of the case touching upon the various factual aspects found available in the case records

6. Aggrieved over this, the present revision has been preferred by the complainant/petitioner under Ss. 397 and 401 of the Code of the Criminal Procedure, challenging the above order

7. Counsel for the petitioner contended that the learned Magistrate committed illegality by invoking the provisions of S. 251 of the Code of the Cr.P.C. by discharging the accused on appreciation of the statement of the witnesses, which is not permissible under law

8. On the contrary, Mr. N. Jothi, learned counsel appearing for the respondents/accused contended that the l