IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 23RD SEPTEMBER 2008 / 1ST ASWINA 1930 Crl.Rev.Pet.No. 4503 of 2007(C) ------------------------------- CC.12/2007 of JUDL. MAGISTRATE OF FIRST CLASS COURT, WADAKKANCHERY .................... REVN. PETITIONER(S): ACCUSED: ----------------------------- THOMAS, S/O. OUSAP, AGED 55 YEARS, THARAYIL VEEDU, NELLUVAI DESOM, THRISSUR DISTRICT. BY ADV. SRI.P.VIJAYA BHANU SRI.M.REVIKRISHNAN RESPONDENT(S): COMPLAINANT: --------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.P.RAVEENDRA BABU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.A.13344/2007 IN CRL.R.P.NO.4503/2007 23.9.2008 DISMISSED Sd/- M.Sasidharan Nambiar Judge /true copy/ P.S to Judge M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO. 4503 OF 2007 =========================== Dated this the 23rd day of September,2008 ORDER This petition is filed under section 397 and 401 of Code of Criminal Procedure challenging the order passed by Judicial First Class Magistrate, Wadakkanchery directing issuance of summons to the petitioner/accused for the offences under section 406 and 420 IPC on the basis of the report submitted by the Sub Inspector of Police, Erumapetty. It was on the basis of First Information Statement recorded from CW1 Devassy, Sub Inspector of Police, Erumapetty registered crime 52/2005 for the offence under section 406 and 420 of Indian Penal Code. After completing the investigation the final report was submitted and offence was taken cognizance of by the learned Magistrate. Case of the petitioner is that the materials produced before the learned Magistrate do not disclose an offence either under section 406 or CRRP 4503/2007 2 420 of IPC and therefore learned Magistrate should not have taken cognizance and hence the order is to be set aside. Relying on the decision of the Apex Court in Rajendra Kumar Sitaram Pande v. Union (AIR 1999 SC 1028) it was argued that revision is maintainable. Learned counsel relying on the decision of the Apex Court in All Cargo Movers (P) Ltd v. Dhanesh Badarmal Jain & Another (2007(4) Crimes 163) argued that unless the ingredients of the offences are made out, learned Magistrate is not competent to take cognizance. The argument of learned counsel is that if an offence under section 420 IPC is not sustainable, then 406 IPC also will not stand. 2. On hearing the learned counsel, I do not find any reason to interfere with the order passed by the learned Magistrate. 3. The offences are to be tried as a warrant trial. Section 239 of Code of Criminal Procedure mandates that on the appearance of the accused, before framing charge as provided under section 240, learned Magistrate shall consider the police report and the documents sent with it as provided CRRP 4503/2007 3 under section 173 and hear the accused and the prosecution and to consider whether the charge against the accused is groundless or not. If the learned Magistrate finds that the charge as against the petitioner is groundless, he is bound to discharge the accused after recording reasons. If only it is found that the charge is not groundless, charge is to be framed as provided under section 240. Petitioner is entitled to canvass sufficiency of the materials to proceed further and seek an order of discharge as provided under section 239 of Code of Criminal Procedure. There is no reason to interfere with the impugned order. Criminal Revision is dismissed. Revision petitioner is at liberty to move an application for discharge as provided under section 239 of Code of Criminal Procedure. If such an application is filed, Magistrate to pass appropriate orders in accordance with law. M.SASIDHARAN NAMBIAR JUDGE tpl/- CRRP 4503/2007 4 M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006