IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 25TH FEBRUARY 2010 / 6TH PHALGUNA 1931 Crl.Rev.Pet.No. 93 of 2010() ---------------------------- CC.111/1999 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, NEYYATTINKARA .................... REVISION PETITIONER/COMPLAINANT:- --------------------------------------------- SANAL, S/O. KUTTAN NADAR, PALAPOORU PLAVILA PUTHEN VEEDU, MUTTAKKADU, KALLIYOOR. BY ADV. MR. M.SREEKUMAR RESPONDENTS:ACCUSED & STATE:- ------------------------------------------ 1. SREEDHARAN, S/O. GOVINDAN, PALAPOORU PLAVILA PUTHEN VEEDU, MUTTAKKADU, KALLIYOOR. 2. STATE OF KERALA, REPRESENTD BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. MR. P.A. SALIM, PUBLIC PROSECUTOR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 25/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR , J. -------------------------------------------------- Crl.R.P. No.93 of 2010 ---------------------------------------------------- Dated this the 25th day of February, 2010. ORDER The revision petitioner is the complainant in C.C. No. 111 of 1999 on the file of the Judicial First Class Magistrate -II, Neyyattinkara. The above proceedings were initiated on the basis of a protest complaint filed by the petitioner. According to the petitioner, at about 4.30 p.m., on 06.08.1998, he was attacked with a stone by the 1st respondent from the vicinity of the match factory situated in Palapooru and he sustained an injury. Though the Thiruvallom police registered a crime, the police ultimately referred the case allegedly on the influence exerted by the 1st respondent. Instead, a crime was registered against the petitioner and two others as Crime No. 104 of 1998 by the Thiruvallom Police for offences punishable under Sections 324, 326 and 341 r/w Section 34 IPC. Crl.R.P. No. 93/2010 : 2 : 2. In th present case, the learned Magistrate took cognizance of the offence under Section 324 IPC. The petitioner was examined as PW1 after which another witness was examined as PW2. The doctor who had issued the wound certificate, was examined as PW3. Thereafter, when the case was posted on 02.11.2005 for further evidence, the petitioner and his counsel were absent and therefore, the Judicial First Class Magistrate - II, Neyyattinkara discharged the accused under Section 249 Cr.P.C. According to the petitioner, the posting of the case was mistakenly noted as 20.11.2005 by his Advocate's Clerk. It is aggrieved by the aforesaid order of discharge dated 02.11.2005 that this revision petition has been filed. 3. Even though the 1st respondent/accused has been duly served, he has not chosen to enter appearance or oppose this revision. 4. This is a case where the proper order that could have been passed was an order of acquittal under Section Crl.R.P. No. 93/2010 : 3 : 256 Cr.P.C. An order of discharge under Section 249 Cr.P.C can be passed only at the pre-charge stage. That apart, there might have been some latches on the part of the petitioner in not appearing before the court below on 02.11.2005 even assuming that his explanation that the Advocate's clerk made a wrong noting of the date, is not accepted. But, the case certainly did not deserve an order of discharge as was passed by the Magistrate. Accordingly, the impugned order is set aside and C.C. No. 111 of 1999 is restored to file with a direction to proceed further in accordance with law. The petitioner shall appear before the court below without any further notice on 08.03.2010. Dated this the 25th day of February, 2010. V. RAMKUMAR, JUDGE. rv Crl.R.P. No. 93/2010 : 4 :