IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 6TH DECEMBER 2010 / 15TH AGRAHAYANA 1932 Crl.MC.No. 4755 of 2010() ------------------------- (CRL.RP NO.61/2010 OF SESSIONS COURT, KOZHIKODE DIVISION) ------------ PETITIONERS/ACCUSED NO.1 & 2: ------------------------------------------------- 1. VELAYUDHAN, S/O.KANNANKUTTY, IDAKKUTTIPURATH PARAMBA, PANTHEERANKAVU AMSOM, KAILAMADAM DESOM, KOZHIKODE. 2. RADHA, W/O.VELAYUDHAN, IDAKKUTTIPURATH PARAMBA, PANTHEERANKAVU AMSOM, KAILAMADAM DESOM, KOZHIKODE. BY ADV. SRI.P.S.SREEDHARAN PILLAI RESPONDENTS/COMPLAINANT & STATE: ----------------------------------------------------------- 1. C.RADHA, AGED 57 YEARS, W/O.KRISHNAN, CHEMBUKANDI PARAMBIL, IDAKKUTTIPURATH PARAMBA, PANTHEERANKAVU AMSOM, KAILAMADAM DESOM, KOZHIKODE, PIN-673 019. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR, SRI.P.A.SALIM THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 06/12/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: VK M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.M.C.NO.4755 OF 2010 --------------------------------------------- Dated 6th December, 2010 O R D E R Petitioners are the accused in C.C.255/2004 on the file of Judicial First Class Magistrate's Court-V, Kozhikode. On 22/3/2010 for the reason that first respondent, complainant was absent, Judicial First Class Magistrate discharged the accused under Section 249 of Code of Criminal Procedure. First respondent challenged that order before Sessions Court, Kozhikode in Crl.R.P.61/2010. By order dated 6/10/2010, learned Sessions Judge allowed the revision holding that after framing charge, learned Magistrate could not have discharged the accused and remanded the case back to the trial Court Crmc 4755/10 2 directing the revision petitioner to appear before the Court on 29/10/2010 without further notice. This petition is filed under Section 482 of Code of Criminal Procedure to quash the order of the revisional Court. 2. Learned counsel appearing for the petitioner was heard. 3. Argument of the learned counsel is that the order of the learned Sessions Judge itself shows that the matter was posted to 14/12/2009 and then to 20/2/2010 and then to 22/3/2010 and even on that date first respondent was absent and in such circumstances, as cognizance was taken in 2004 learned Magistrate discharged the accused and learned Sessions Judge should not have set aside the order of discharge or remanded the case. Crmc 4755/10 3 4. Section 249 of Code of Criminal Procedure provides that when the proceedings have been instituted upon a complaint and on any day fixed for hearing of the case and the complainant is absent, and the offence may be lawfully compounded or is not a cognizable offence, Magistrate may, in his discretion, notwithstanding anything contained, at any time before the charge has been framed, discharge the accused. Therefore, as rightly found by the learned Sessions Judge order of discharge under Section 249 of Code of Criminal Procedure could only be before the charge is framed under Section 246(1) of Code of Criminal Procedure. An accused could have been discharged under Section 249 of Code of Criminal Procedure, only before framing of the charge and not subsequent to the framing of the charge. In such Crmc 4755/10 4 circumstances, there is absolutely no reason to interfere with the order of learned Sessions Judge in Crl.R.P.61/2010. Petition is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj. Crmc 4755/10 5