IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 12TH FEBRUARY 2009 / 23RD MAGHA 1930 Crl.Rev.Pet.No. 62 of 2009() ---------------------------- AGAINST THE ORDER DATED 23/10/2008 IN CMP. 2530 /2008 IN CC.119/2006 of CHIEF JUDICIAL MAGISTRATE COURT, TRIVANDRUM .................... REVN. PETITIONER(S): --------------------- JURIAN CHANDY, 72 YEARS, PURAYIDATHIL HOUSE, IDAMARUKU P.O., ERATTUPETTA , PALA, KOTTAYAM. BY ADV. SRI.K.K.CHANDRAN PILLAI SRI.A.S.SAJUSH PAUL RESPONDENT(S): --------------- 1. SANTHOSHKUMAR, SURYA, SURYA GARDEN, H.NO.12, SASTHAMANGALAM PO., THIRUVANANTHAPURAM. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.ISSAC NINAN FOR R1 SRI.T.K.RAJESHKUMAR FOR R1 PUBLIC PROSECUTOR SRI. PUZHAKKARA MUHAMMED THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 12/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * Crl.R.P. NO. 62 2009 * * * * * * * * * * * * * * * * * * Dated: 12-2-2009 ORDER Heard the learned counsel for the revision petitioner as well as the learned counsel for the first respondent complainant. 2. The first respondent filed a private complaint against five persons including the revision petitioner before the Chief Judicial Magistrate's Court, Thiruvananthapuram alleging an offence punishable under Sec. 420 read with Sec. 34 I.P.C. The revision petitioner was arrayed as the 2nd accused in the said private complaint. Accused Nos. 1 and 2 alone appeared before the Magistrate. The learned Magistrate took cognizance of the said offences against accused Nos. 1 and 2 and registered the case as C.C. No. 119 of 2006 . The first accused absconded and, therefore, the case against him was split up and C.C. No. 119 of 2006 was proceeded with against the revision petitioner alone. On 16-6-2008, the revision petitioner had filed Crl.M.P. No. 2530 of 2008 seeking a discharge. As per the impugned order dated 23- 10-2008 the discharge petition has been dismissed by the following order “dismissed in view of charge framed in Crl.R.P. NO. 62 2009 -:2:- the case”. 3. The discharge petition could not have been dismissed for the reason that the charge has already been framed. If the Magistrate found prima facie case for framing charge then he should have dismissed the petition for discharge and thereupon framed the charge. But he has proceeded in the reverse order which is the illegality committed by the Magistrate. Accordingly, the impugned order dated 23-10-2008 is set aside and Crl.M.P. No. 2530 of 2008 shall stand restored to file with a direction to dispose of the same afresh on merits in accordance with law. It goes without saying that the order dated 23-10-2008 framing the charge will be of no avail and in case the petition for discharge is eventually dismissed, then only the Magistrate can frame the charge according to law. This Petition is accordingly, disposed of. V. RAMKUMAR, (JUDGE) ani.