TMI Blog1996 (4) TMI 520X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 39 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecords. At the very outset I must say that the order suffers from grave illegality on two important points of law referred below. The offence for which the cognizance taken by the Magistrate are under Sections 147, 447, 427and 506(1), I.P.C. As per the schedule of criminal procedure code these offences are to be tried as summons cases. The application for discharge was filed under Section 251 read with S. 255(1) of the Code of the Criminal Procedure. Section 251 read with S. 255(1), Cr.P.C. are contained in Chapter 20. This deals with trial of summon cases by the Magistrate. Under Section 251 of Criminal Procedure Code, when the accused appears before the Magistrate, the particulars of the offences for which he is accused shall be stated to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t clear that the accused could not invoke for discharge before the trial has been either under Sections 251 or 255(1) of the Code of the Criminal Procedure. In this case it is fairly apparent that the Magistrate has grossly violated this mandatory procedure, as contemplated between Sections 251 and 255(1) of the Code of the Criminal Procedure. So, the above order which suffers from the above illegality is liable to be set aside. 12. Consequently, there are some other sections provided for discharge, discharging the accused in a (police) warrant case and (Police) sessions case. Under Section 239 of the Code of the Criminal Procedure if upon considering the police report and the documents sent with it under Section 173 and making suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to consider only the documents filed along with the police report in order to find out whether the charge was groundless or not, for the discharge of the accused and there is no question of adding or subtracting anything or considering any extraneous materials other than the documents forwarded to the Court as contemplated under Section 173 of the Code of the Criminal Procedure and furnished to the accused under Section 207 of the Code of the Criminal Procedure. The stage prior to the framing of the charge is not accepted to be a rehearsal of the trial. The Magistrate at this stage is required to consider the Police report and the documents sent along with under Section 173 of the Code of Criminal Procedure which are furnished to the accuse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. S. Pasupathi, 1981 Mad LW (Crl) 251, M. V. Ramaswamy v. State, 1987 Mad LW (Crl) 71, Thankappan v. Thankaraj, 1988 Mad LW (Crl) 395, Kannan v. Inspector of Police (1989) Mad LW (Crl) 410 and in R. Krishnamurthy v. Raja, 190 Mad LJ (Crl) 13. All these decisions relate to the powers of the High Court under Section 482 of the Code of the Criminal Procedure to quash the proceedings when the proceedings were found to be of civil nature. As such, those decisions would not be applicable to this case. The mere pendency of the suit in Civil Courts would not entitle the Magistrate to invoke the power under Section 482 of the Code of the Criminal Procedure, to discharge the accused. Moreover, the meticulous appreciation of the evidence would be don ..... X X X X Extracts X X X X X X X X Extracts X X X X
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