A magistrate must provide a reasoned decision based on evidence when dismissing a discharge application under Section 244 of the Cr.PC.

O R D E R

The order dated 20.07.2019 of the Judicial First Class Magistrate-V, Thiruvananthapuram, dismissing a petition filed for discharge by the accused in C.C.No.129/2013 on the files of that Court, is under challenge in this revision petition filed by the accused Nos.1 & 2 in that case. 2. The learned Magistrate initiated the proceedings upon a private complaint filed by the first respondent. The allegation against the petitioners is that they forged a power of attorney purportedly executed by the brother of the second petitioner, and made use of the same for seeking reliefs in a suit instituted before the Munsiff’s Court, Thiruvananthapuram, as O.S.No.561/2010, and also in a proceedings before the Tribunal for Local Self Government Institutions, Thiruvananthapuram. Thus, the petitioners are alleged to have committed the offences under Sections 468 , 471 & 420 read with Section 34 of the Indian Penal Code, 1860 .

3. In the proceedings under Section 244 of the Code of Criminal Procedure, 1973 (in short, ‘Cr.PC’), the learned Magistrate recorded the evidence of the complainant and six witnesses as PW1 to PW6. It was at that stage that the petitioners filed C.M.P.No.116/2016 seeking discharge from the prosecution. The learned Magistrate dismissed the above petition vide the impugned order without arriving at a finding as to whether no case against that accused has been made out which, if unrebutted, would warrant their conviction. It is the aforesaid order which is under challenge in this revision petition.

4. Heard the learned counsel for the revision petitioners, the learned counsel for the first respondent and the learned Public Prosecutor representing the State of Kerala.

5. As already stated above, the learned Magistrate passed the impugned order after the completion of the recording of evidence under Section 244 Cr.PC. As many as six witnesses including the complainant were examined in the aforesaid proceedings. However, in the impugned order refusing the prayer of discharge of the accused (petitioners herein), the learned Magistrate has not adverted to the aforesaid evidence. Instead, it has been observed in paragraph No.7 of that order that the involvement of the accused persons in the transaction cannot be ruled out, and that it is only during trial the nature of the offence and role played by the accused Nos.1 & 2 will come out. It is the further observation of the learned Magistrate that in an enquiry under Section 245 of the Code, the Magistrate is concerned only with the question whether there is ground to presume the guilt of the accused for the offences triable as a warrant case which he is competent to try, and could be adequately punished. Furthermore, it is stated by the learned Magistrate that, at that stage the Court is not expected to go deep into the probative value of the materials on record. The observations of the learned Magistrate in the above regard, are perfectly correct. But at the same time, it was incumbent upon the learned Magistrate to state in the impugned order, in brief, about the evidence which he had considered in the proceedings under Section 244 Cr.PC and the reasons why he was of the opinion that there is ground for presuming that the accused have committed the offence alleged in the complaint. It is true that an elaborate ratiocination of the evidence is not required at that stage when the Magistrate is to decide whether charge has to be framed against the accused. But at the same time, when the accused had filed an application seeking discharge, the learned Magistrate is expected to concisely state in the impugned order by referring to the evidence adduced under Section 244 Cr.PC. as to why he is of the opinion that there is ground for presumin