TMI Blog2003 (10) TMI 699X X X X Extracts X X X X X X X X Extracts X X X X ..... ight of 11.7.1997. That incident was at about 10 p.m., according to the prosecution. The complainant's husband was taken into custody on the same night. 3. More than two months after the said incident, in which Sabu met with his death, the complainant filed a complaint before the Judicial First Class Magistrate Court, Palai. In the complaint she alleged that on that night at about 9 p.m. she was called by the said deceased Sabu to go to his house. The purported purpose was to attempt to settle the disputes between the two neighbours in the presence of the uncle of the complainant. According to the complainant, she obliged and proceeded to the house of Sabu. After reaching there she found that the uncle, who allegedly was available there, was not present there. It dawned on her that the attempt was to pressurise her and to compel her to subscribe her signature to some documents. She refused to oblige. She was wrongfully restrained. She was criminally intimidated. She cried aloud. Hearing her cries, some persons from outside had allegedly entered the house after breaking open the door of the house. In the melee she some how escaped from that house and rushed to her house. It i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the further ground that she had not made any prompt complaint at all. In these circumstances it was urged that PW.1 was interested only in advancing an artificial version to help her husband in the trial before the Court of Sessions. 6. PW.2 is the mother of PW.1. In the complaint dated 11.7.1997 there is no reference to her name at all. Admittedly, she along with her husband - father of PW. 1, resides not in the house in which PW. 1 resides, but in an adjacent house. PW.2 was examined by the complainant to support her theory that she had gone away from her house to the house of the deceased for the purported purpose of attempting to settle the disputes. PW.2 had tendered evidence that PW.1 had came back to her house on that night after the incident. 7. So far as PW.3 is concerned, he was examined as an alleged independent, though chance witness, who happened to pass the house of the deceased on that night. The name of PW.3 is not referred to in the complaint at all. Though PW. 1 did not have such a case on oath before the learned Magistrate, PW.3 went on to say that PW.1 who ran out of the house of the deceased had apprised him/PW.3, when he met her outside the house, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ischarge under Section 245(1) is perfectly justified. Notwithstanding the fact that the learned Magistrate had resorted to Section 245(2) Cr.P.C., the impugned order holding that the respondents/accused do not deserve to be proceeded against further, does not warrant interference, it is contended. 12. My attention has been drawn to the two decisions reported in Jacob Thomas v. ASSL Collector of Customs 1998 (1) KLT 741 and Mani v. Joseph 1999 (3) KLT 49. 13. The quality of consideration, which a criminal court undertakes, of the materials available before it, must certainly vary from circumstance to circumstance and stage to stage. At the initial stage of Section 203/204 Cr.P.C., a criminal court considers the materials available before it for the short purpose of deciding whether there is sufficient ground to proceed against the accused. In a private complaint alleging commission of a warrant offence under Section 245 Cr.P.C., after the enquiry under Section 244 Cr.P.C., a criminal court is expected under Section 245(1) only to consider whether such a case has been made out which, if unrebutted, would warrant a conviction. The quality of consideration of the materials av ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 245/246 Cr.P.C. At the stage of Section 245/246 Cr.P.C. the complainant has already been given an opportunity to substantiate his complaint. The accused has been given an opportunity to challenge the materials placed. At this stage of Section 245/246 Cr.P.C. the question is certainly not whether the evidence if accepted would warrant a conviction. The question is only whether the case established, from the materials placed before the court, if unrebutted, would warrant a conviction. In that view of the matter, the consideration of the stage of Section 245/246 Cr.P.C. is one which is more sublime. It is not as though the court will have to accept any and every material placed before it at the stage of Section 245/246 Cr.P.C. An application of mind to the materials available before the court must certainly be undertaken. The evidence will not be swallowed without consideration of its probative value. Of course, the exercise of weighing the evidence in golden scales will not also be resorted to. 17. I am in agreement with the learned counsel for the petitioner/complainant that the court must have considered the materials available under Section 245 Cr.P.C. This is not certainl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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