1. The order of the Judicial First Class Magistrate Court-II, Kochi in C.C No.1/2020 discharging the accused in the said case under Section 245(1) Cr.P.C, which has been upheld in revision by the Additional Sessions Court-VI, Ernakulam, is under challenge in this Original Petition filed by the complainant under Article 227 of the Constitution of India.

2. The proceedings before the learned Magistrate arose out of a protest complaint filed by the petitioner in Crime No.771/2016 of Palluruthy Police Station, wherein the allegation against the respondents 1 and 2 was that they committed offences punishable under Sections 323, 509, 354 and 448 I.P.C r/w 34 I.P.C. After the completion of the enquiry under Section 200 Cr.P.C, the learned Magistrate took the complaint to files as C.C No.1/2020 and issued summons to respondents 1 and 2 herein. Both the respondents appeared before the Trial Court, and they were released on bail. During the course of evidence under Section 244 Cr.P.C, the petitioner and one witness were examined as PW1 and PW2 respectively and Exts.P1 to P12 were marked. Though PW1 was cross-examined, the cross-examination of PW2 was deferred as opted by the defence. After hearing both sides, the learned Magistrate arrived at the finding that no case against the accused has been made out, which, if unrebutted, would warrant their conviction. Accordingly, the learned Magistrate discharged the accused (respondents 1 and 2 herein) under Section 245(1) Cr.P.C holding that the charge against them is groundless.

3. The petitioner herein challenged the above order of the learned Magistrate in revision before the Additional Sessions Court-VI, Ernakulam. The learned Additional Sessions Judge embarked upon a detailed evaluation of the evidence on record and held that there was no reason to interfere with the impugned order of the learned Magistrate discharging the accused. Aggrieved by the above concurrent findings of the courts below, the petitioner is here before this Court with this revision.

4. Heard the learned counsel for the petitioner, the learned counsel for respondents 1 and 2, and the learned Public Prosecutor representing the State of Kerala.

5. As per Ext.P1, which is the complaint upon which the learned Magistrate initiated the proceedings, the allegation against the respondents 1 and 2, who are the petitioner’s brother’s son and brother respectively, is that they criminally trespassed into her house on 27.03.2016, uttered sexually coloured obscene words, slapped her and dragged her by getting hold of her hair. The further allegations in the complaint pertain to the persistent harassment and humiliation meted out to the petitioner by the respondents 1 and 2 by tapping her phone conversations and depicting her and her family members as insane persons with low morale. It is further stated in the complaint that the grievance of the petitioner in the above regard had not been redressed though she preferred numerous complaints before the police and other authorities.

6. While adducing evidence before the Trial Court as PW1, she reiterated the aforesaid allegations, though with minor variations. A neighbour of the petitioner, who was examined as PW2, swore before the learned Magistrate about the act of the respondents 1 and 2 verbally abusing and physically assaulting the petitioner inside her house on 27.03.2016. The learned Magistrate observed in paragraph No.8 of the impugned order that PW1 did not state that she had sustained hurt at the hands of the accused and there was also no medical evidence to show that she had any injury. For the above reason, the learned Magistrate declined to accept the allegation that respondents 1 and 2 committed the offence under Section 323 I.P.C. As regards the offence under Section 509 I.P.C, the learned Magistrate observed that the petitioner had not specified the actual words or gesture which insulted her modesty. The learned Magistrate further held that since the statement of PW1 did not contain anything to show that respondents 1 and 2 applied criminal force upon her to outrage her modesty, the offence under Section 354 I.P.C is not made out. On the allegation of house trespass coming under Section 448 I.P.C, the learned Magistrate held that since the offences under Sections 323, 354 and 509 I.P.C are not made out, the entry of the accused into the residence of the complainant cannot be termed as criminal trespass. In addition to the aforesaid findings, the learned Magistrate has delved upon the conduct of the complainant preferring complaints against various persons before various authorities and extracted a paragraph from a text book on Medical Jurisprudence and Toxicology wherein it is stated that suspiciousness is the characteristic symptom of paranoid schizophrenia at the early stages. Certain other contents of the said book in which delusions of persons suffering from paranoid schizophrenia about others persecuting them by poisoning them and also plotting against them for ruining them, are also quoted with emphasis in paragraph No.10 of the impugned order of the learned Magistrate. Thereafter, in paragraph No.11 of the impugned order, the learned Magistrate went on to observe that the complainant had preferred various kinds of complaints before various authorities and that the nature of the allegations were weird. Accordingly, the learned Magistrate arrived at the conclusion that if he decides to proceed further against the accused persons on that complaint, it will be a miscarriage of justice.

7. It is apparent from the impugned order of the learned Magistrate that the analysis and observations thereunder were far beyond the scope of the parameters to be looked into for arriving at the conclusion as to whether no case against the accused has been made out, which if unrebutted, would warrant their conviction. It seems that the learned Magistrate went on with the analysis of evidence as if he had been deciding the merits of the case at the conclusion of trial. The fact that the evidence on record clearly brought out the alleged act of the respondents 1 & 2 entering into the house of the petitioner and physically assaulting her by getting hold of her hair and slapping her, has been ignored by the learned Magistrate. The observation that the petitioner did not state that she sustained hurt at the hands of the accused and that there were no medical evidence showing injury, are totally out of place since the witnesses examined in the case categorically stated that the accused resorted to physical assault upon the complainant inside her house by getting hold of her hair and slapping her. Going by the established principles of law pertaining to the standard of proof to be looked into at the stage of framing of charges, the evidence led in the above regard was more than enough to conclude that the accused are liable to face criminal prosecution for the commission of offence under Sections 448 & 323 I.P.C.

8. In State of Rajasthan v. Fatehkaran Mehdu, [(2017) 3 SCC 198], the Apex Court made it clear that at the stage of framing of charges it is neither permissible nor in consonance with the scheme of procedures to hold that court should form an opinion that the accused is certainly guilty of committing the offence alleged. The relevant paragraph of the said judgment is extracted hereunder:

                  “26. The scope of interference and exercise of jurisdiction under Section 397 CrPC has been time and again explained by this Court. Further, the scope of interference under Section 397 CrPC at a stage, when charge had been framed, is also well settled. At the stage of framing of a charge, the court is concerned not with the proof of the allegation rather it has to focus on the material and form an opinion whether there is strong suspicion that the accused has committed an offence, which if put to trial, could prove his guilt. The framing of charge is not a stage, at which stage final test of guilt is to be applied. Thus, to hold that at the stage of framing the charge, the court should form an opinion that the accused is certainly guilty of committing an offence, is to hold something which is neither permissible nor is in consonance with the scheme of the Code of Criminal Procedure.”

9. In Kunhali Haji v. State of Kerala (2004 (2) KLT 713) a learned Single Judge of this Court held that the golden scale of evaluation of evidence is not the method of appreciation of evidence at the stage when the court is to decide on the framing of charges based on the evidence adduced under Section 244 Cr.PC. The relevant paragraph in the aforesaid decision is extracted hereunder:

                  “5. The law on the point is well settled. At the stage of S.245(1) of the Cr.P.C., the learned Magistrate is not expected to resort to the exercise of weighing the evidence in golden scale. The learned Magistrate need only consider at that stage whether such a case has been made out which if unrebutted would warrant a conviction. If such a case has been made out, charge has to be framed under S.246 of the Cr.P.C. presuming that the accused has committed the offence. If such a case has not been made out, the accused must be discharged under S.245(1) of the Cr.P.C.”

10. Unfortunately, the learned Magistrate lost sight of pertinent aspects in the above regard, and even embarked upon extraneous matters far beyond the scope and ambit of Sections 244 & 245 Cr.PC.

11. It could be seen from the order of the Revisional Court also that the limited scope of the analysis of the evidence adduced under Section 244 Cr.PC, was overlooked. The Revisional Court also embarked upon hair-split analysis of the evidence on record as if at the final stage of the trial, and erroneously concurred with the findings of the learned Magistrate. An elaborate ratiocination of the evidence of PW1 & PW2 in the context of minor inconsistencies and incompatibilities has been adopted by the Revisional Court to arrive at a finding upholding the decision of the learned Magistrate. The above course of action of the Revisional Court is apparently one exceeding the scope of the powers which could be exercised under Section 397 Cr.PC. Therefore, the impugned orders of the courts below are liable to be interfered with in exercise of the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. Needless to say, the prayer of the petitioner to set aside the aforesaid orders, deserves to be allowed.

                  In the result, the petition stands allowed as follows:

                  (i)       Exts P2 and P3 orders of the Judicial First Class Magistrate Court-II, Kochi, and the Additional Sessions Court-VI, Ernakulam, in C.C.No.1/2019 & Crl.R.P.No.16/2022, respectively, are hereby set aside.

                  (ii)      The case is remitted back to the Trial Court with the direction to the learned Magistrate to consider the matter afresh, in the light of the observations in this order and to pass orders in the matter of framing charges within the purport and scope of Sections 245 & 246 Cr.PC (Sections 268 & 269 of the Bharatiya Nagarik Suraksha Sanhita, 2023).