Courts To Pass Speaking Orders While Rejecting Discharge Application U/S 239 CrPC: Kerala High Court

The Kerala High Court on Monday laid down that a speaking order would have to be passed by the Court which considers and rejects an application for discharge under Section 239 of Cr.P.C. 

Justice N. Nagaresh, relied upon the Apex Court decision in Ghulam Hassan Beigh v. Mohammad Maqbool Magrey (2022), wherein the Court had observed that all that is required at the time of framing of charge is that the Court ought to be satisfied that the evidence collected by the prosecution is sufficient to presume that the accused has committed an offence. The Court added that while rejecting a discharge application, the reasons for the same also ought to be disclosed.

The petitioner, who was a Cashier of Kavitha ITC between April 2014-March 2016, and her husband who was an Office Assistant in the same Company, were alleged to have misappropriated an amount of ₹37,02,753/- and destroyed the receipt books for the relevant period, in pursuance of the same. The couple were also alleged to have made alterations and corrections to the cashbook. 

The petitioner and her husband were thus alleged to have committed the offences under Sections 201, 406, 420, 468 and 471 read with Section 34 IPC.

On receipt of the Police report, the petitioner filed an application for discharge under Section 239 Cr.P.C. before the Chief Judicial Magistrate (CJM). 

The petitioner was aggrieved that the CJM had rejected her application without stating any reason for the same. She relied upon the Apex Court decision in Ghulam Hassan Beigh (Supra), wherein the Court had laid down that it could not act as a mere 'postman' while considering an application for discharge. The petitioner submitted that the Court had to apply its mind and consider whether there were prima facie materials to establish the allegations, and proceeded to allege that the impugned order of the CJM had been a 'cryptic and non-speaking order'. She thus prayed for setting aside of the impugned order. 

Public Prosecutor Seena C. however argued that the case was one where the couple had cheated their employer and swindled a significant amount, and added that the report by the police would disclose prima facie material pointing towards the guilt of the petitioner. "A mini trial is not warranted at the stage of discharge petition. The order of the Chief Judicial Magistrate is not liable to be interfered with on all or any of the grounds urged by the revision petitioner," the Public Prosecutor urged. 

The Court in this case noted that the CJM had not disclosed the materials on the basis of which the petitioner's discharge application had been rejected. 

"There is no statement in the order as to which materials available in the records would prima facie disclose the offence alleged against the petitioner. The impugned order dated 25.08.2023 is therefore devoid of any reason," the Court found. 

Taking note of the Ghulam Hassan Beigh (Supra), the Court thus set aside the impugned order, and directed the CJM to reconsider the petitioner's application, and pass a speaking order thereon, within a month. 

"It is made clear that I have not pronounced anything on the merit on the eligibility of the petitioner for discharge," the Court added, while allowing the plea. 

Advocates Mansoor B.H., and Sakeena Begum appeared on behalf of the revision petitioner. 

Citation: 2023 LiveLaw (Ker) 558 

Case Title: Nimmy Mathew v. State of Kerala & Anr. 

Case Number: CRL. REV. PET. NO. 931 OF 2023

Click Here To Read/Download The Order