An elephant by name Venugopalan is claimed to have been purchased by the Kolassery Temple Renovation Committee of which Shri K.M. Malabary, the complainant in C.C. No. 58 of 1977 before the Judicial Magistrate of the First Class, Wadakkancherry, is the President. The complaint was filed by him as President of the Committee alleging that the said elephant which was in his possession was stolen by the accused on 9th January, 1976. Accordingly summons was issued to the accused to answer a charge under section 379 of the Indian Penal Code. After taking evidence adduced by the prosecution the learned Magistrate found that on the evidence the prosecution failed to make out a case which would warrant a conviction of the accused and therefore discharged the accused under section 245 (1) of the Code of Criminal Procedure. This order of discharge was challenged in revision by the complainant before the Court of the Sessions Judge, Trichur. The learned Judge considered the evidence in the case and came to the conclusion that the lower Court had gone wrong in discharging the accused at that stage and the lower Court should have questioned the accused under section 313 of the Code before considering whether a charge was to be framed. The order of discharge was set aside and the case was remanded to the trial Court with a direction that the Court below shall proceed with the case in accordance with law. The learned Sessions Judge also found that the evidence adduced by the prosecution in the case warranted framing of charge against the first accused. This revision is at the instance of the two accused in this case. According to the revision petitioners there was no case for interference with the order of discharge in revision and the direction to examine the accused tindersection 313 of the Code prior to the framing of charge was not warranted by the provisions of the Code.

2. Stated in brief, the prosecution case goes thus: The Kolassery Temple Renovation Committee purchased an elephant by name Venugopalan from 1st accused for the temple at a cost of Rs. 22,000 out of which a sum of Rs. 1,001 was paid in cash and a cheque for Rs. 5,000 was also issued. The complainant is said to have met the expenses of medical treatment of the elephant which was not well at that time and it is the complainant's case that reimbursement had to be made by the first accused for the expenses so met. When the elephant was being used by one Kunjimon for his work as a forest contractor under an arrangement with the complainant the accused are said to have caused the removal of the elephant on 9th January, 1976 from the possession of the complainant. Though a complaint was made to the police that was not effective and therefore a private complaint was filed before the Court of Judicial Magistrate of the First Class by the complainant. In support of the prosecution case P.Ws. 1 to 10 were examined. Besides, documentary evidence Exhibits P-1 to P-24 was also adduced.

3. Since the learned Sessions Judge has chosen to reverse the decision of the trial Magistrate on the merits it may be necessary to refer in brief to the approach to the case by the learned trial Magistrate. After referring to the evidence of all the prosecution witnesses in detail the learned Magistrate found the following: (1) There was absolutely no evidence in the case in support of the charge that the accused removed the elephant from Kumbalangad, the place where it was being kept. No circumstance has also come out which would lead to the inference that the accused so acted. (2) The complainant had failed to prove that he was in exclusive possession of the elephant in question during the period when the offence is alleged to have been committed. (3) Since on these findings the prosecution did not make out a case the accused were to be discharged under section 245 (1) of the Code of Criminal Procedure.

4. In support of the first of the two conclusions mentioned above learned Magistrate observed that there were no witnesses in the case who implicated the accused in the matter of removal of elephant from Kumbalangad. No witnesses had spoken to their seeing the accused removing the elephant or causing such removal to be made. As to the circumstances the Court was of the view that there were none which would warrant such a view. The Court took the view that there was no material sufficient to find that the accused had dishonestly removed the elephant from Kumbalangad. Certain other circumstances are referred to in support of this view. Reference is particularly made to Exhibit P-24, a petition filed by P.W. 1 on 9th January. 1976 before the Sub-Inspector of Police, Wadakkancherry. P.W. 1 admits that this petition was filed after he visited the place from where the elephant was said to have been removed and according to him enquiries had been made about its disappearance. Nevertheless Exhibit P-24 does not mention that the accused had removed the elephant. In fact the mention there is that the accused was threatening to remove the elephant. But the case in the complaint filed before the Court later speaks of removal of the elephant by accused on 9th January, 1976. In short the finding of the trial Court is that the evidence did not establish the act of removal on the part of the accused.

5. In support of the second finding reached by the trial Court, namely, that exclusive possession of the complainant had not been shown, several reasons have been mentioned in the order of the learned Magistrate. One of them is quite relevant and material and may perhaps be sufficient to answer the case. The categorical case in the complaint is that the elephant was taken delivery of by the complainant on 9th June, 1975 on executing an agreement for purchase with the owner the 1st accused and that accused Nos. 1 and 2 removed the said elephant from the possession of the complainant and committed theft of the same. The complainant purported to file the complaint as the President of the Kolassery Temple Renovation Committee. Exhibit P-2 was proved by the complainant as P.W. 1. Particular reference is made to the portion of Exhibit P-1 minutes book recording the resolution passed by the said Committee to purchase the elephant for the Committee for a sum of Rs. 22,000. Evidently the reference is made to indicate that the purchase was by the complainant in his capacity as President indicated the complaint. But in his evidence he developed a different case. Obviously the reference to such a different case cannot be a mistake, for, it is not a casual or passing reference to such a case, but a case which is referred to and sought to be substantiated by the evidence adduced by the prosecution itself. It is necessary in this context to notice that besides the Temple Renovation Committee which was functioning in relation to the working of the temple there was a Private Trust with five trustees, the Sreekrishna Trust. The Temple Committee was constituted by 12 members. That is what is spoken to by P.W. 1. These two are two entirely different bodies. That too is admitted by P.W. 1. Therefore if the elephant was purchased by the Committee it could not belong to (he Trust and it could not be in the possession of the Trust. If on the other hand it was purchased by the Trust it could not belong to the complainant, the Renovation Committee. Even in the chief examination P.W. 1 states that an elephant was purchased for the Trust of the temple. If there is any ambiguity in this statement that has been removed by the further statement by P.W. 1 in his evidence:

“Aanayae vangiyathu Sreekrishna Trust aanu.”

In regard to the different identities of the Temple Renovation Committee and the Sreekrishna Trust P.W. 1 speaks thus:

"Kolasseri kshethrodharana samithi eyppozhum function cheyyunnuddu. Athu koodathae Sreekrishna Trust form cheithittundu ………. Athu Private Trust aanu………. Trust alla kshethram bharikkunnathu. Samithiyanu kshethram bharikkunnathu."

6. Exhibits P-15, P-16 and P-17 are produced by him to show that the funds for the purchase of the elephant and treatment of the elephant were not from the funds of the Trust and the elephant was being let out on hire by the Sreekrishna Trust. Exhibit P-17 accounts is intended to prove the former point and Exhibits P-15 and P-16 to prove the latter point. Therefore it would appear that what is sought to be substantiated is that the elephant was hired out to Kunhumon under Exhibit P-15 agreement by the Trust which had expended the money for treatment of the elephant and which had also paid the part of the consideration admittedly paid over to the first accused. Unless the Trust and the Committee are one and the same there is no such case and in fact the admitted case is otherwise-the Temple Renovation Committee represented by its President could not have been in possession of the elephant. Evidence of P.W. 1 in fact goes further. At one stage P.W. 1 would say that it was neither the Committee nor the Trust that obtained the elephant. That was said to be obtained by him along with one Krishnan Nair, another member of the Managing Committee of the Temple Renovation Committee. He would say that neither the Committee nor the Trust had the financial capacity to purchase the elephant at the time it was purchased. Reference is made to all these materials though not in detail by the learned Magistrate in support of the finding that the complainant had failed to prove his case of possession. Reference is also made to other circumstances. The suggestion by the defence is that the elephant was never handed over to the complainant. P.W. 1 categorically states in his evidence that in the written deed of agreement executed on 9th June, 1975 the fact that possession of the elephant was handed over to the complainant was recorded. But the agreement is not forthcoming. Reference is made by the learned Magistrate to this fact. It appears that since the first instalment due under the agreement was not paid a fresh agreement was executed. That too is not produced. The excuse of P.W. 1 for non-production, when questioned, is that the agreement was handed over to the Sub-Inspector of Police along with the complaint. On being questioned further on this aspect of the case he would say that it was only the second agreement which was so handed over. In that event the other agreement would still be available with P.W. 1. Even the agreement handed over to the Police Inspector could have been summoned. The non-production of the agreement has been commented upon by learned Magistrate. It is further mentioned that though in the complaint it is said that it was with much difficulty that the elephant was brought to the temple premises after the purchase, this statement could not be true since according to P.Ws. 5 and 6 the elephant was kept in the temple premises even before the transaction took place. If that be so the plea that the elephant was taken after it was said to have been delivered over on 9th June, 1975 cannot be true. That again is noticed by the learned Magistrate. I do not find any reason to feel that the approach by the learned Magistrate is illogical or irrational. I do not see any unreasonableness in his approach to the case.

7. The learned Sessions Judge seems to have misunderstood the scope of his revisional power and also the scope of section 313 of the Code. In revision he is not sitting as an appellate authority to assess the evidence, adduced by the prosecution independently to come to a conclusion as to whether on a mere (appreciation of the evidence over again he should come to a different conclusion. That would have been the function of the Court if the power conferred was a power co-extensive with that of the trial Court. The revisional function is more limited than an appellate function and cannot extend to an independent appreciation of the evidence adduced to see whether in the opinion of the revisional Court a different conclusion should follow. I am mentioning this because that is what is seem to have happened in this case. I fail to see any finding by the learned Sessions Judge in the order under challenge that the order of the -Magistrate is either perverse or unreasonable. That would certainly justify interference with the order. May be other circumstances such as whether very material evidence which would change the fate of the case has been ignored or there has been reference to material which ought not to be referred and that has materially affected the final fate of the case may also justify interference. On going through the order of the learned Sessions Judge I do not think that too is the case here. No irregularity or illegality is shown. In case the learned Judge found thai there are circumstances warranting interference in revision I would expect that decision to be reached not merely by a reappraisal of the evidence. It there has been wrong approach by the trial Magistrate and the decision is seen to be reached on wrong premises rendering the order so vitiated as to call for interference the appropriate course would be to set aside the order and remit the case back rather than making an independent assessment of the evidence with a view to find whether a charge should be framed.

8. The very important fact is that the learned Sessions Judge has not properly adverted to the reasoning found in the order of the Magistrate in support of the finding that possession of the complainant had not been proved. As I indicated the attempt to prove a case contrary to that in the complaint adverted to by the Magistrate has not even been touched upon by the learned Sessions Judge in his order. He has gone into the question of possession independently and he seems to think that a letter Exhibit P-9 written by the father-in-law of the first accused to the complainant should clinch the issue against the accused in the case. I have been taken through the evidence furnished by Exhibit P-9 letter and the evidence of P.W. 7 and I regret I see no justification for the assumption made by the learned Judge. At any rate this evidence cannot clinch the issue. The father-in-law of the first accused, P.W. 7. writes to the complainant in an inland letter dated 11th August. 1975 pointing out that the complainant has been guilty of breach of his promise to pay even the first instalment of the amount promised as the value of the elephant, that obligations are mutual and a party need discharge his obligation only if the other discharges his obligation in turn. I do not find anything in Exhibit P-9 letter which would indicate possession being handed over to the complainant nor does the evidence of P.W. 7 indicate this. On the other hand the evidence is categorically that it is not so. Reference is made by the learned Sessions Judge to the cashing of the cheque for Rs. 5,000 by the first accused paid towards part of the consideration as a circumstance indicating handing over of possession. This was on 12th November, 1975. It was said that this circumstance requires an explanation by the accused as otherwise this would corroborate the case of the complainant that the agreement of sale subsisted at least till that date. The question is not whether the agreement of sale subsisted but whether delivery of the elephant was given. Even the question whether the agreement of sale subsisted on 9th January, 1976 will not be evidenced by part payment made earlier. Anyhow the question to be tackled is not whether the agreement was alive but whether under the agreement of sale possession was given. As I indicated the finding that there was no evidence to show that possession was given to the complainant and the reasoning in support of it in the order of the learned Magistrate remains unanswered in the order of the learned Sessions Judge.

9. The learned Judge also seems to have erroneously assumed that the learned Magistrate has found that there was no evidence of removal of the elephant. The finding of the Magistrate is that there was no evidence of the removal of the elephant by the accused and such evidence alone will bring home the offence to the accused. It is interesting to notice that the learned Judge assumed that there are circumstances in the case which called for examination of the accused and therefore accused must be examined before charge is framed. These circumstances are said to be the cashing of the cheque for Rs. 5,000 by the first accused which according to the learned Judge would lead to the presumption that the sale was subsisting on that day and the further circumstance that ultimately the elephant was taken from the possession of the accused by the police. In this context the learned Sessions Judge says:

"Therefore, the only question to be considered by the Court was whether P.W. 1's case that they have purchased the elephant and that they were keeping the elephant till 9th January, 1976 as their own is true and whether the prosecution has established that aspect of the case"

This is not putting the case in the proper way, for, the question is whether the complainant obtained possession of the elephant and whether the accused removed the elephant from his possession as rightly posed by the trial Magistrate. Whatever that be the learned Sessions Judge is not justified in further observing-

"If so, there is a strong presumption unless explained by the first accused that it was he who had removed the elephant from the possession of P.W. 1. In such a case, questioning of the accused assumes great importance."

Again in paragraph 7, the learned Judge says-

"………. It is for the accused to explain why he had cashed a cheque for Rs. 5,000 on 12th November, 1975. This circumstance in the absence of any explanation by the accused will only corroborate the case of the complainant that the agreement of sale subsisted atleast till that date."

Ultimately the learned Judge comes to the conclusion-

"I strongly feel that the lower Court had gone wrong in discharging the accused at this stage. The lower Court should have certainly questioned the accused under section 313, Criminal Procedure Code, to give them as opportunity to explain the circumstances appearing in the evidence of the prosecution side and should have considered thereafter whether a charge is to be framed."

10. The learned Judge seems to think that it is mandatory on the part of the Court to examine the accused under section 313 of the Code before a charge is framed and therefore he has directed that to be done before considering the question of framing the charge.

11. This is a warrant case instituted otherwise than on a police report. Section 245(1) of the Code provides that, if in any case, after taking all the evidence adduced by the prosecution, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which would warrant his conviction, the Magistrate shall discharge the accused. This provision corresponds to section 253(1) of the Code of Criminal Procedure, 1898, which stood repealed by the Code of 1973. But there is a difference that the words “and making such examination (if any) of the accused as the Magistrate thinks necessary” in sub- section (1) of old section 253 has been substituted by the words “the Magistrate considers, for reasons to be recorded,” in the present sub- section (1). In other words the provision enabling the questioning of accused prior to framing of a charge under section 253(1) is absent in section 245(1) as it now stands. Possibly that may not be very material, for, section 313 of the new Code which corresponds to section 342 of the 1898 Code provides for putting questions to the accused at any stage of any enquiry or trial. Section 313, clause (1)( a) enables a Court to put such questions to him as the Court considers necessary while section 313(1) ( b) obliges the Court to question the accused generally on the case after the witnesses for the prosecution have been examined and before the accused is called on for his defence. The words used in section 313 . clause (1)( a) of the new Code may be more appropriate in the context of questioning the accused, for, that refers to putting questions to the accused which section 253 (1) of the old Code referred to ‘examining’ the accused.

12. The obligation under section 313 (1) ( b) to question the accused generally after the witnesses for the prosecution have been examined and before the accused is called on for his defence arises in a case where the accused is called on for his defence and that in turn would arise when the charge is framed. The power enabling the Court to question a witness at any stage is a power that may be exercised even during the course of the enquiry or trial and even before the examination of the prosecution witnesses is completed. But that is only an enabling power. The very significant aspect that has been lost sight of by the learned Sessions Judge is that the provision in section 313 is one intended to secure to the accused an opportunity to explain the evidence against him and therefore is a provision intended to benefit the accused and not to operate to his detriment. It is certainly not a provision intended to benefit the prosecution by using it to fill up the gaps in the prosecution evidence. It is one thing to say that on the evidence the prosecution has nude out a case but another to say that if the accused is questioned and explanation of the accused obtained the prosecution would be able to establish its case. Evidently that sounds to be the approach made by the learned Sessions Judge. The accused in this case have no grievance that they have not been given any opportunity to answer any case. The question of examination under section 313(1) ( b) would not arise before a charge is framed. The grievance that the Court should have invoked section 313(1) ( b) to put questions to the accused cannot be urged in this case by the complainant who may possibly feel that this may help his case. Not that I feel that any such examination would be of any assistance to the complainant here. I regret to say that the learned Sessions Judge has misunderstood the scope of section 313 and the direction to examine the accused under section 313 prior to considering the question of framing of charge is not warranted in the circumstances. The consequence is that I should find that there are no justification for the learned Sessions Judge to interfere with the order of the learned Magistrate. The revisional order is vacated and the order of the learned Magistrate is restored. The order of discharge would stand. Allowed as above.