Kerala High Court
Shashi Tharoor vs State Of Kerala
Author: V.K.Mohanan
Bench: V.K.Mohanan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.K.MOHANAN
WEDNESDAY, THE 16TH DAY OF JANUARY 2013/26TH POUSHA 1934
Crl.MC.No. 14 of 2013 ()
------------------------
AGAINST THE ORDER/JUDGMENT IN CC.1190/2009 DATED
PETITIONER(S)/ACCUSED:
----------------------
SHASHI THAROOR,
FORMER ADDRESS: AABC, THEJESWINI ANNEX, TECHNO PARK,
THIRUVANANTHAPURAM-695 581.
(PRESENT ADDRESS: TC 26/1592,
PULIMOODU-GOVT. PRESS ROAD,
THIRUVANANTHAPURAM-695 001;
DELHI RESIDENCE ADDRESS: 97, LODHI ESTATE,
NEW DELHI-110 003).
BY ADVS.SRI.K.RAMAKUMAR (SR.)
SRI.S.M.PRASANTH
SMT.SMITHA GEORGE
SMT.G.ASHWINI
SMT.ASHA BABU
RESPONDENTS/STATE & COMPLAINANT:
-------------------------------
1. STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR
HIGH COURT OF KERALA,ERNAKULAM-682031.
2. JOY KAITHARATH,
GENERAL SECRETARY,
STATE HUMAN RIGHTS PROTECTION CENTRE,
VELLIKULANGARA P.O., THRISSUR-680 698.
BY ADV.SRI.K.K.RAJEEV, PUBLIC PROSECUTOR FOR R1
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD
ON 16-01-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.MC.No.14 of 2013
APPENDIX
EXHIBITS FOR THE PETITIONER :
ANNEXURE A : COPY OF THE COMPLAINT FILED BY THE 2nd RESPONDENT BEFORE
THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM, DATED
17.1.2009.
EXHIBITS FOR THE RESPONDENTS : NIL
//TRUE COPY//
P.A.TO JUDGE
ami/
V.K.MOHANAN, J.
-------------------------------
Crl.M.C.No.14 of 2013
-------------------------------
Dated this the 16th day of January, 2013.
O R D E R
This is an application filed under section 482 of Cr.P.C., at the instance of an accused, in a private complaint in C.C.No.1190 of 2009 of the court of Additional Chief Judicial Magistrate-Ernakulam, dated 17.1.2009, instituted on the basis of the complaint filed by the second respondent, wherein the allegation and cognizance are for the offence under section 3 of the Prevention of Insults to National Honour Act, 1971 (hereinafter referred to as 'the Act'). The prayer in this petition is to quash all further proceedings in C.C.No.1190 of 2009 of the court of Additional Chief Judicial Magistrate-Ernakulam, instituted as evidenced by Annexure A complaint.
2. The crux of the allegation against the petitioner is that, on 16.12.2008, the trustees of Fedbank Hormis 2 Crl.M.C.No.14 of 2013 Memorial Foundation conducted the 10th Commemorative Lecture in memory of one Mr.K.P.Hormis (late) at the Le- Meridien Convention Centre, Kochi, and the commemorative lecture was delivered by the petitioner on the subject "The global Financial Crisis and India's Incomplete Transformation". According to the complainant, he was one among the audience and the audience include very many dignitaries including District Collector, Senior IAS and IPS officers, Political leaders and it was a large gathering and the media had covered the entire event. As per the complaint, after the lecture, the anchors of the programme announced singing of National Anthem and the entire audience and the dignitaries on the dias stood up for singing the National Anthem. It is stated in the complaint that the anchors have started singing the National Anthem, accompanied by the entire audience. It is the further allegation in the complaint that when the Anthem was in progress, the accused took a microphone from the table and 3 Crl.M.C.No.14 of 2013 announced that National Anthem has to be sung in the American way keeping the right hand on the left chest instead of the attention posture followed by Indians so far which was a practice taken from British Rulers. Thus, according to the complainant, the singing of the National Anthem was disrupted abruptly. It has also stated that the National Anthem was re-strated in the mode suggested by the accused which was against the lawful way of keeping in attention by the audience as practiced by all Indians so far. According to the complainant, most of the participants followed the way suggested by the accused, and himself and a few others did not oblige to the persuasion of the accused. Thus according to the complainant, the accused had intentionally prevented the singing of the Indian National Anthem and causes disturbance to the assembly engaged in singing the National Anthem on 16.12.2008 at 7.30 p.m. at Le-Meridien Convention Centre, Kochi, which is strictly within the limits of Panangad Police Station coming under 4 Crl.M.C.No.14 of 2013 the territorial jurisdiction of the trial court and the said act of the accused is punishable under section 3 of 'the Act'.
3. It appears from the averment in the memorandum of the Crl.M.C. that the learned Additional Chief Judicial Magistrate had conducted inquiry under section 200 and also under section 202 of Cr.P.C. by examining the complainant and two others, and on taking cognizance of the said offence upon the complaint filed against the petitioner, C.C.No.1190 of 2009 was instituted. It is also beyond dispute that the offence alleged is triable as a "warrant case" and as the learned Magistrate was of the opinion, that were substantiated to proceed against the petitioner, he had opted to issue process under section 204 of Cr.P.C., instead of dismissing the complaint. It is also discernible from the factual averment in the above Crl.M.C. that in receipt of the process issued from the court, the petitioner entered appearance. On the appearance of the petitioner, the court below further proceeded to record the 5 Crl.M.C.No.14 of 2013 evidence of the complainant as contemplated under section 244(1) of Cr.P.C. Thereafter, the case was adjourned and posted to 5.1.2013 for framing of the charge against the petitioner. It is at this stage, the petitioner preferred the present petition under section 482 of Cr.P.C. with a prayer to quash all the proceedings in C.C.No.1190 of 2009. From the facts stated in paragraph 6 of the memorandum of above Crl.M.C. and from the submission of the learned counsel for the petitioner it appears that, after recording the evidence of the complainant under section 244 of Cr.P.C., the petitioner had moved an application under section 91 and 245 of Cr.P.C. r/w section 165 of Indian Evidence Act with the prayer to issue summons to the Manager, Federal Bank, Aluva, to produce the compact disc recorded by the Federal Bank on 16.12.2008 in the function held in the Le-Meridien Convention Centre, Kochi, which was declined by the learned Magistrate by his order in Crl.M.P.No.1977 of 2011. Challenging that order, the 6 Crl.M.C.No.14 of 2013 petitioner herein had approached this Court under section 482 of Cr.P.C., filing Crl.M.C.No.3108 of 2011, which was dismissed by this Court by order dated 14.11.2012 and the above decision is reported in Shasi Tharoor Vs. State of Kerala (2012(4) KLT 879).
4. I have heard Adv.Sri.K.Ramakumar learned senior counsel for the petitioner.
5. The learned senior counsel, after taking me through Annexure A complaint and section 3 of 'the Act', has submitted that, no offence as alleged by the complainant is attracted against the petitioner. It is also the submission of the learned counsel that though the evidence on behalf of the complainant has already recorded under section 244(1) of Cr.P.C., the complainant has miserably failed to adduce evidence to make out any ground to proceed against the petitioner and therefore the learned Magistrate ought to have discharged the petitioner from the case, but the learned Magistrate has erroneously posted the case to 7 Crl.M.C.No.14 of 2013 5.1.2013 for framing charge. The specific contention of the learned counsel for the petitioner on the basis of the factual input involved in the case, as discernible from paragraph 11 of the petition filed under section 482 of Cr.P.C., is that the complainant has suppressed the information that the organizers of the function had prepared a Compact Disk recording all the voices during the function which will clearly show that as soon as the National Anthem was announced and before it was sung, a heart rending appeal was made by the petitioner with a patriotic fervour that, considering the situation in the country all those who participate in the singing should place their hand on the heart. According to the learned counsel, the above approach of the petitioner was to show more respect to the Anthem than to interrupt it. Thus, the learned counsel submits that, there was no question of interference or intervention at the instance of the accused during the singing of National Anthem, as per the speech recorded in 8 Crl.M.C.No.14 of 2013 CD. The speech was made before singing and after the speech of the persons on the dias and all including the petitioner participated in singing the National Anthem and therefore there is no question of interruption or insult to the National Anthem. So, according to the learned counsel for the petitioner, the continuance of the proceedings before the court below will have to be treated as utterly malafide and an abuse of the process of the court, and the proceedings of the court below will result in harassment, embarrassment and humiliation to the petitioner. Thus, it is the fervent contention of the learned counsel for the petitioner that it is a fit case where this Court has to exercise the jurisdiction conferred upon this Court under section 482 of Cr.P.C. and to quash the entire proceedings in C.C.No.1190 of 2009 pending before the court of Chief Judicial Magistrate-Ernakulam. In support of the contentions, the learned senior counsel has placed much reliance upon the decisions reported in 2008 KHC 5693= 9 Crl.M.C.No.14 of 2013 N.R.Narayana Murthy Vs. H.N.Nanjegowda (2008 Crl.L.J.2206), N.R.Narayana Murthy Vs. Kannada Rakshana Vakeelara Vedike (Regd.) (AIR 2007 Karnataka 174), Balwant Singh and another Vs. State of Punjab {(1995)3 SCC 214} and Bijoe Emmanuel and others Vs. State of Kerala and others {(1986)3 SCC 615}.
6. I have carefully considered the persuasive arguments advanced by the learned counsel for the petitioner at the time of hearing at the Bar and notes dated 9.1.2013 produced.
7. Initially, after hearing the matter, this Court by order dated 2.1.2013 reserved the same for judgment. But subsequently, the matter posted on 9.1.2013 for 'to be spoken' to ascertain from the petitioner as to whether he had approached the trial court for hearing on discharge.
8. At the outset it has to be noted that the present petition is preferred by the petitioner, who is the accused at 10 Crl.M.C.No.14 of 2013 the stage when the case against him was posted for framing up charge under section 246 of Cr.P.C. As I indicated earlier, after having taken cognizance for the offence punishable under section 3 of 'the Act', as there was no scope for dismissing the complaint under section 203 of Cr.P.C., the learned Magistrate has proceeded to issue process under section 204 of Cr.P.C., in pursuance to which the petitioner entered appearance in the trial court. The offence complained against the petitioner is under section 3 of 'the Act', of which the punishment contemplated is imprisonment for a term which may extend to 3 years or with fine or with both. In view of section 2(X) of Cr.P.C., the above offence is coming under the category of "warrant cases". Therefore, on the appearance of the accused, the learned Magistrate adopted the proceedings as contemplated under section 244 of Cr.P.C., the procedure prescribed for which the case is instituted otherwise than on the police report under sub chapter 'B' of Chapter XIX of 11 Crl.M.C.No.14 of 2013 Cr.P.C. It is also beyond dispute that now the court below has stepped into the next stage, ie., under section 246 of Cr.P.C. for framing of charge.
9. Though the learned senior counsel for the petitioner has advanced several contentions on the basis of the factual inputs of the case and also on the strength of the authorities cited supra, I am not inclined to consider those contentions and I am also not proposed to express any opinion on merit of such contentions at this stage, since that may adversely affect either the defence or the prosecution. Therefore, I am consciously expel myself from entering into any discussion or finding on merit of the case advanced by the petitioner before me, particularly in the light of the specific submission made by the learned senior counsel in this regard.
10. As this Court is not inclined to entertain this petition on merit and to interfere with the proceedings of the court below, after inviting my attention to section 246 of 12 Crl.M.C.No.14 of 2013 Cr.P.C., learned counsel submitted that the proceedings and the approach adopted by the trial court are diametrically opposed to the provisions contained in section 246 of Cr.P.C. In support of the above submission, learned counsel has pointed out that immediately after completing the recording of the evidence of the complainant's witnesses under section 244(1) of Cr.P.C., the learned Magistrate straight away posted the case for framing of charge on 5.1.2013. Thus, according to the counsel, even before applying the mind of the learned Magistrate, he formed an opinion that there is ground for proceeding against the accused and posted the case for framing charge, and therefore the learned counsel submits that the said proceedings of the court below are factually and procedurally arbitrary and illegal. Therefore, it is submitted by the counsel that before framing a charge, the learned Magistrate may be directed to give an opportunity to the petitioner for being heard and to appraise the learned 13 Crl.M.C.No.14 of 2013 Magistrate that no offence is disclosed against the petitioner on the basis of the available materials and evidence.
11. I am unable to sustain the above contention and accord sanction requested as such, as there is no provision in sub chapter 'B' of chapter XIX of Cr.P.C. for a hearing before the framing of charge. In this juncture it is pertinent to note that after taking cognizance based upon the available materials and on appearance of the accused and after recording the evidence of the complainant under section 244(1) of Cr.P.C., it is the prerogative of the learned Magistrate to decide whether the accused shall be discharged or not either under section 245(1) or (2) of Cr.P.C., after having formed an opinion in this regard, on the basis of the available material after recording the evidence of the complainant under section 244 of Cr.P.C. Admittedly, in the present case, the stages contemplated under section 245(1) and (2) are over.
14 Crl.M.C.No.14 of 2013
12. It is after considering the above request of the counsel for the petitioner, though the case was originally reserved for judgment on 2.1.2013, I posted the case again to 9.1.2013, on which date after hearing the counsel again, by order dated 4.1.2013, this Court directed the court below to forward a report stating that after completing the process of recording evidence in the above case under section 244 of Cr.P.C., whether the petitioner has filed any application for discharge or made any oral request for the same and also to state whether an order has been issued by the trial court, recording its satisfaction of no ground to discharge the accused under section 245 of Cr.P.C. irrespective of whether any request made in writing or oral for a discharge and the trial court was directed to adjourn the case to a date after two weeks deferring the framing of charge in the meanwhile.
13. Accordingly, the learned Magistrate by the proceedings bearing No.1190/09/D.36/13 dated 5.1.2013 15 Crl.M.C.No.14 of 2013 reported to this Court that after recording the process of recording the evidence in the above case under section 244 of Cr.P.C., the petitioner had not filed any application for discharge or made any oral request for the same. It has also reported that the said court has not issued any order regarding its satisfaction of no ground for discharging the accused under section 245 of Cr.P.C. It has also reported that none of the parties has made any elaborate argument on the question of discharge or framing charge in this regard. However, the learned Magistrate has reported that after recording the evidence under section 244 of Cr.P.C., the petitioner had filed Crl.M.P.No.1977/11 in which the sections quoted in the docket are under section 91 and 245 of Cr.P.C. r/w section 165 of Indian Evidence Act, which was filed to summon the compact disk of the recording of the function in which the accused was alleged to have committed the offence.
14. I have carefully considered the submissions of the 16 Crl.M.C.No.14 of 2013 learned counsel for the petitioner, for a hearing before framing of charge in the above factual and procedural backdrops of the case.
15. In this juncture it is apposite to state that this Court had occasion to consider the scope for discharge of the accused on his appearance in a warrant case instituted otherwise than on police report, before recording the evidence under section 244 of Cr.P.C. The above case has reported in Integrated Finance Co. Ltd. Vs. P.G.Thomas & anr. (2013(1) KLT 118). In the above decision particularly in paragraph 20 has held, "The next stage of inquiry is prescribed in Section 244 and under Section 245(1) or 245(2) of Cr.P.C. In the decision in Mathew Paily's case (supra), this Court has further held as follows:-
"6. The next stage is found in S.244 of the Code. Under this section, the Magistrate shall hear the prosecution and take all such evidence as may be produced in support of the prosecution. Having taken all such evidence, it is open to the Magistrate to do one of the two things, viz.(i) pass an order of discharge under S.245(1) of the Code on the ground that no case against the accused has been made out which, if unrebutted, would warrant his conviction, or(ii) proceed to frame charge against the accused 17 Crl.M.C.No.14 of 2013 under S.246 of the Code. When once a charge is framed, the Magistrate has to conduct the trial (that is, in a warrant case) as laid down in S.246 and 247 of the Code and pass orders under S.248 of the Code either acquitting or convicting the accused. These are two other stages of disposal. Under S.249 of the Code, on any hearing day, the Magistrate has power to discharge an accused in a compoundable or non-cognizable offence if the complainant is absent.
7. I have now referred to four stages in a warrant case. There is yet another intermediary stage covered by S.245(2) of the Code. It is true that under S.244 of the Code, the Magistrate is under a duty to take all such evidence as may be produced by the prosecution, and it is after taking all such evidence that he must decide whether there should be an order of discharge under S.245(1) of the Code or a charge under S.246 of the Code. There may be cases where after examining one or two witnesses, the evidence and the circumstances placed before Magistrate may appear to be of such a nature that he may legitimately think that further enquiry would serve no purpose at all, much less the interest of justice. In such a case, it is open to him to come to the conclusion that the charge is groundless. Thereupon, S.245(2) of the code permits the Magistrate to pass an order of discharge and this, in my opinion, is the second stage of disposal of a warrant case. Similarly, even without taking the entire prosecution evidence, it is open to the Magistrate to halt the enquiry and frame a charge as contemplated in S.246 of the Code."
(emphasis supplied) In this juncture, according to me, it is appropriate to refer to Section 245 of the Cr.P.C. which reads as 18 Crl.M.C.No.14 of 2013 follows:-
"245. When accused shall be discharged (1) If, upon taking all evidence referred to in section 244, the Magistrate consider, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him.
(2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless."
In the light of the decision in Mathew Paily's case, after issuing process under Section 204 of Cr.P.C., the stage of discharge comes under Section 245 of the Cr.P.C. In view of Section 245(1) of Cr.P.C., even after taking all the evidence, which may be adduced by the complainant in terms of Section 244 of the Cr.P.C., if the Magistrate is of the opinion after considering such evidence that no case against the accused has been made out, which if unrebutted would warrant his conviction, the learned Magistrate shall discharge the accused by recording his reasons thereof. In the light of the above decision, after recording the evidence of one or two witnesses produced in terms of Section 244 of Cr.P.C. and if the evidence and circumstances placed before the Magistrate is of such a nature, the Magistrate may legitimately think that further inquiry would serve no purpose at all and in such a case, then it is open to the Magistrate to come to a conclusion that the charge is groundless and accordingly, accused can be discharged as per Section 245(2) of the Cr.P.C., by recording his reasons for the same. In this juncture, it is pertinent to note that the term "previous stage of the case" referred to in sub-section (2) of Section 245 of Cr.P.C., according to me, is not a stage before recording the evidence under Section 244 of Cr.P.C. and after issuing process under Section 204 of Cr.P.C. As observed in Mathew Paily's case, specific provisions 19 Crl.M.C.No.14 of 2013 are incorporated in Chapter XV, particularly in sub- chapter B of Chapter XIX which deals with 'Trial of Warrant Cases by Magistrate, cases instituted otherwise than on police report'. Thus, on a careful analysis of the procedure prescribed for the trial of warrant case by the Magistrate upon private complaint, it can be seen that if once the process issued under Section 204 of Cr.P.C., the accused can be discharged, only after recording the evidence under Section 244 of Cr.P.C. and that too, in terms of Section 245. In a recent decision reported in Manharibhai Muljibhai Kakadia and Anr. v. Shaileshbhai Mohanbhai Patel and Ors. (2012 (7) Supreme 257), after examining the scope of Sections 202 and 203 of Cr.P.C., the Apex Court, while reiterating the legal position, has held as follows:
"..........The Parliament being alive to the legal position that the accused/suspects are not entitled to be heard at any stage of the proceedings until issuance of process under Section 204....................................."
Indeed in the decision in Adalat Prasad v. Rooplal Jindal [2004(3) KLT 382 (SC) = 2004 KHC 1137], the Apex Court has clarified that recalling an order of issuance of process run counter to the scheme of Cr.P.C,. where there is no provision for review and prohibits interference at interlocutory stages. Resultantly, the inevitable conclusion that can be arrived is that after the appearance of the accused in receipt of process from the court under Section 204 of the Cr.P.C., the first opportunity for the accused to convince the trial court which issued the process, for a discharge, is under Section 245(1) or (2) of Cr.P.C. and that too only after recording the evidence as contemplated under Section 244 of Cr.P.C. (Emphasis supplied). Of course, Section 249 of Cr.P.C. is another provision to discharge the accused due to the absence of the complainant which, according to me, is not relevant in the present case. It is further relevant to note that the 2nd sub-section to Section 245 of Cr.P.C. 20 Crl.M.C.No.14 of 2013 empowers the Magistrate to discharge the accused, without taking all the evidence referred to in Section 244 of Cr.P.C. , but at any intermediate stage after starting the process of recording such evidence as observed in Mathew Paily's case, if the Magistrate is of the opinion, on consideration of such evidence that the charge is to be groundless. It is for that reason sub- section (2) is incorporated to Section 245 in the chronological order and that too after prescribing the procedure under Section 244. Therefore, the discharge referred to in Section 245(2) of Cr.P.C. is not on any previous stage to Section 244 of Cr.P.C. As I indicated earlier, even if the complaint is not dismissed under Section 203 of Cr.P.C., it does not mean that the accused has to face the trial in pursuance of the process under Section 204 of Cr.P.C. Thus, in case the complaint and the materials and the evidence which are recorded under Section 244 of Cr.P.C. are not capable to withstand the test prescribed under Section 245(1) or (2), the complainant cannot further pursue the complaint and the accused need not undergo the ordeal of trial. Thus, according to me, the provisions for discharge of the accused contained in Section 245(1) and (2) are the check measures specifically incorporated to prevent the accused from facing a vexatious or frivolous complaint and thereby, to save the interest of the accused." (Emphasis supplied) Thus, following the above discussion, according to me, section 245 and 246 of Cr.P.C. coming under Sub Chapter B of Chapter XIX are not two watertight compartments. As I indicated earlier, it is within the cognizance and competence of the learned Magistrate to find, either under section 245(1) or 245(2) of the above chapter of Cr.P.C., 21 Crl.M.C.No.14 of 2013 any scope for discharge of the accused after recording the complainant's evidence under section 244 of Cr.P.C. If the opinion of the learned Magistrate in this regard is in favour of the complainant and against the accused, the corollary is that the learned Magistrate has made up his mind to frame charge against the accused as there are sufficient materials for the same. So the procedural responsibilities and powers vested upon the Magistrate, who consider the case under section 245 of Cr.P.C., demand exercise of such powers, more carefully and judicially. It is now well settled that under section 245 of Cr.P.C., the learned Magistrate is bound to pass a detailed order only when he decides to discharge the accused, otherwise there need not any detailed order when he is to step into the next stage.
16. It is in this juncture, according to me, the decision in Integrated Finance Co. Ltd. Vs. P.G.Thomas & anr. (2013(1) KLT 118) become relevant. So in the process of forming an opinion by the learned Magistrate under section 22 Crl.M.C.No.14 of 2013 245 of Cr.P.C., to ensure the fairness and justice, it is advisable to give an opportunity to the accused for being heard on the question of discharge, especially when no provision is made in Sub Chapter B of Chapter XIX of Cr.P.C. for a hearing of the accused before framing the charge, as in the case of warrant case triable upon police report or as in the case of trial of the sessions case.
17. But in the present case, it is pertinent to note that as per the report of the learned Magistrate and as per the submission of the counsel for the petitioner and from the averments of the petitioner in the memorandum of Crl.M.C., there is nothing to show that the petitioner has requested for a discharge after recording the evidence of the complainant under section 244 of Cr.P.C. As I indicated earlier, on the basis of the report of the learned Magistrate, ofcourse, the petitioner has filed Crl.M.P.No.1977/11, a petition under section 91 and 245 of Cr.P.C. r/w section 165 of Indian Evidence Act, but it appears that it is not in terms 23 Crl.M.C.No.14 of 2013 of section 245 of Cr.P.C. However, the said petition was dismissed by the learned Magistrate and though the same was challenged before this Court at the instance of the petitioner herein, by filing Crl.M.C.No.3108 of 2011, the same was dismissed by another learned Single Judge of this Court, confirming the order of the learned Magistrate and the said case has also reported in Shasi Tharoor Vs. State of Kerala (2012(4) KLT 879). So, instead of filing a petition or making even an oral request for discharge on the basis of the available materials, after recording the evidence under section 244 of Cr.P.C., the petitioner herein approached the learned Magistrate for summoning the materials to substantiate his defence which is impermissible in law and procedure, in the light of the above decision of this Court. So, the only inference that can be drawn from the above facts and circumstances is that, the petitioner has not approached the court below and attempted to apprise the learned Magistrate with his case for a discharge and 24 Crl.M.C.No.14 of 2013 thus the learned Magistrate had no occasion to consider and appreciate the grounds of the petitioner for a discharge. Therefore, according to me, this petition can be disposed of relegating the petitioner to approach the court below for a discharge by making any request for the same either in writing or in oral and by directing the learned Magistrate to consider the same on merit and to pass an order thereon.
In the result, this Crl.M.C. is disposed of relegating the petitioner to approach the trial court for his discharge from the above case, namely, C.C.No.1190 of 2009 of the court of the Additional Chief Judicial Magistrate, Ernakulam, either by making petition in writing or in oral, on or before 16.02.2013. On filing of such a petition or making any request in this regard, the learned Magistrate is directed to consider the same on merit exclusively on the basis of the available materials and the evidence of the complainant recorded under section 244 of Cr.P.C. and to pass 25 Crl.M.C.No.14 of 2013 appropriate orders, and till that time, the learned Magistrate is directed to defer the framing of the charge and the case which stands posted on 23.1.2013 is directed to adjourn and post the same on 16.02.2013, and thereafter proceed to the next stage based upon the outcome in pursuant to the proceedings on 16.02.2013. If the petitioner fails to comply with the above direction within the time limit, the learned Magistrate is free to frame the charge against the petitioner as already decided by him.
Crl.M.C. is disposed of accordingly.
Sd/-
V.K.MOHANAN, Judge ami/ //True copy// P.A. to Judge