IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 10TH AUGUST 2011 / 19TH SRAVANA 1933 Crl.Rev.Pet.No. 1819 of 2011 ---------------------------------------- [AGAINST THE ORDER DATED 11/10/2010 IN M.P .3091/2010 IN CC.NO.726/2008 OF JUDICIAL MAGISTRATE OF FIRST CLASS COURT (I), PERUMBAVOOR] .................... REVISION PETITIONER/COMPLAINANT: --------------------------------------------------------- V.K.PAREETH, S/O.KUNJAN PILLA, AGED 68 YEARS, VELLAPPILLIL VEEDU, RAYONPURAM POST, KANJIRAKKAD KARA, PERUMBAVOOR VILLAGE, KUNNATHUNADU TALUK. BY ADV. SRI.M.M.ALIAS. RESPONDENTS/ACCUSED NOS.1 TO 6 & STATE: ---------------------------------------------------------------------- 1. NOORUDHEEN, S/O.VEERAN, PADINJAREPARAMBIL VEEDU, KUTTAMASSERY KARA, ALUVA EAST VILLAGE, ALUVA TALUK. 683 101. 2. ABDULLA, S/O.VEERAN, PADINJAREPARAMBIL VEEDU, KUTTAMASSERY KARA, ALUVA EAST VILLAGE, ALUVA TALUK. 683 101. 3. IBRAHIMKUTTY, S/O.VEERAN, PADINJAREPARAMBIL VEEDU, KUTTAMASSERY KARA, ALUVA EAST VILLAGE, ALUVA TALUK. 683 101. 4. SAFIYA, W/O.NOORUDHEEN, PADINJAREPARAMBIL VEEDU, KUTTAMASSERY KARA, ALUVA EAST VILLAGE, ALUVA TALUK. 683 101. 5. PATHUMMA, W/O.IBRAHIMKUTTY, PADINJAREPARAMBIL VEEDU, KUTTAMASSERY KARA, ALUVA EAST VILLAGE, ALUVA TALUK. 683 101. CRL.R.P.NO.1819/2011: 6. C.ISMAIL, S/O.C.A.ABU, CHERIYIL VEEDU, THOTTUMUGHAM KARA, ALUVA EAST VILLAGE, ALUVA TALUK. 683 101. 7. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PIN-682 031. R1 TO R6 BY ADVS. SRI.B.RAMAN PILLAI, SRI.R.ANIL, SRI.ANIL K.MOHAMMED, SRI.SUJESH MENON V.B, SRI.SHYAM ARAVIND, SRI.T.ANIL KUMAR, SRI.MANU TOM, R7 BY PUBLIC PROSECUTOR SRI. SABU SREEDHARAN. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 10/08/2011,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. S.S.SATHEESACHANDRAN, J -------------------------------------- Crl.R.P No.1819 OF 2011 ----------------------------------------- Dated this the 10th day of August 2011 ORDER The de facto complainant in C.C No.726/2008 has filed this revision challenging the legality, propriety and correctness of the order passed by the Judicial First Class Magistrate -I, Perumbavoor, by which the accused in the aforesaid case have been discharged under Section 239 of the Code of Criminal Procedure. 2. Notice given, the respondents have entered appearance. It is submitted that the order of discharge was passed when a protest complaint pursuant to filing of a refer report of the case by the police was pending enquiry. The order passed by the learned Magistrate sustaining the plea of discharge canvassed by the accused under Section 239 of the Code in such a proceeding, it is submitted, is erroneous. 3. After a refer report was filed in the case by the police, after investigation, the accused had approached this court with a petition for quashing that report under Section 482 of the Code of Criminal Procedure as if a charge was laid against them. On the representation made by the accused in such petition that the case had been taken Crl.R.P No.1819 OF 2011 - 2 - cognizance by the Magistrate on the police report, a direction was issued to consider the plea of discharge, which was stated to have been raised by the accused under Section 239 of the Code. Pursuant to dismissal of that Crl.M.C, with the observation as aforesaid, the accused had moved an application under Section 239 of the Code. The learned counsel for the petitioner submits that the complainant and three of his witnesses by then had been examined in the case, which proceeded on the protest complaint over the refer report of the police. That submission is not disputed. The procedure followed by the Magistrate in considering the plea of discharge under Section 239 of the Code in such circumstances cannot be sustained. The accused may be entitled to seek for termination of such proceedings under sub Section (1) or (2) of Section 245 of the Code, if they make out a case of discharge. But no such inquiry has been conducted by the Magistrate. 4. The learned counsel for the accused, however, submits that the disputes involved in the case emerge from a contract of sale over an immovable property. A civil suit filed by the complainant, it is submitted, over that contract of sale, has already been dismissed. Police had referred the case initially as one falling under a civil dispute is also pointed out by the counsel to contend that the accused in the case are entitled to have discharge under Section 245 of the Code. Crl.R.P No.1819 OF 2011 - 3 - 5. Whatever be the defence canvassed to sustain the plea of discharge, it is incumbent upon the Magistrate to examine such plea under Sub Section (1) or (2) of Section 245 of the Code. Consideration of such claim with reference to the materials tendered by the complainant in the inquiry is entirely different from that covered by Section 239 of the Code. 6. Setting aside the impugned order, but, granting liberty to the accused to canvass the plea of discharge, if they are entitled to, under the relevant provision of the Code, the Magistrate is directed to proceed with the case taking note of the observations made and pass appropriate orders in accordance with law. Revision is disposed directing the parties to mark their appearance before the Magistrate on 20-09-2011. Sd/- vdv S.S.SATHEESACHANDRAN, JUDGE //True Copy// P.A to Judge