IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 11TH DECEMBER 2008 / 20TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 3643 OF 2008() ------------------------------ CRMP.5941/2008 IN C.C.148/2008 OF JUDL.MAGISTRATE OF FIRST CLASS COURT-I, PATHANAMTHITTA .................... REVN. PETITIONERS/APPELLANTS/ACCUSED NO.2 TO 4: --------------------- 1. K.P.VARGHESE, AGED 64 YEARS, BIJOY VILLA, NALKALICKAL MURI, ARANMULA VILLAGE,KOZHANCHERRY TALUK, NALKALIKKAL P.O., ARANMULA, PATHANAMTHITTA DIST. 689 533, 2. P.J. MARIAMMA, AGED 60 YEARS, W/O. K.P. VARGHESE, BIJOY VILLA, NALKALICKAL MURI, ARANMULA VILLAGE, KOZHANCERRY TALUK, NALKALIKKAL P.O., ARANMULA, PATHANAMTHITTA DIST. 689 533. 3. RENJITH VARGHESE, AGED 32 YEARS, S/O. K.P. VARGHESE,BIJOY VILLA, NALKALICKAL MURI, ARANMULA VILLAGE, KOZHANCHERRY TALUK,NALKALIKKAL P.O., ARANMULA, PATHANAMTHITTA DIST. 689 533. BY ADV. SRI.K.SHRIHARI RAO SMT.N.SHOBHA RESPONDENT(S)/RESPONDENT/COMPLAINANT: --------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. C.M. KAMMAPPU THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 11/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRRP3643/2008 OR DER ON CRL.M.A.11266OF 2008 IN CRRP 3643 OF 2008 DISMISSED 11.12.2008 SD/- M. SASIDHARAN NAMBIAR, JUDGE. Okb/- /TRUE COPY/ P.A. TO JUDGE M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO. 3643 OF 2008 ------------------------------------------ Dated this the 11th day of December, 2008 O R D E R Revision petitioners are accused 2 to 4 in C.C.148 of 2008 on the file of Judicial First Class Magistrate-I, Pathanamthitta. Revision is filed challenging the order passed by learned Magistrate in C.M.P.5941 of 2008 , an application filed by them for discharge. The learned Magistrate, by the impugned order found that the records produced, with the statement of the witness prima facie show a case and at this stage evidence cannot be evaluated and therefore the petitioners cannot be discharged. 2. Learned counsel appearing for revision petitioners was heard. 3. The argument of the learned counsel is that learned Magistrate did not properly consider the ingredients of the offence or the sufficiency of the materials, to proceed with the trial. It was argued that when neither in the Habeas Corpus petition nor in the proceedings before the Matrimonial Court, the allegation raised in the present case was raised by the CRRP 3643/2008 2 defacto complainant and this aspect was not taken into consideration by the learned Magistrate and therefore the dismissal of the petition for discharge is not legal. 4. On hearing the learned counsel, I find no reason to interfere with the order. At the stage of framing charge what is decided by the learned Magistrate is whether on the materials relied on by the prosecution, a prima facie case to proceed with the trial is made out. On the other hand, if on the materials relied on by prosecution, the Magistrate finds that the said materials even if accepted unrebutted, the petitioners cannot be convicted for the offence under section 498A read with section 34 of Indian Penal Code, they are to be discharged. On the other hand, if on those materials the Magistrate is satisfied that there is a prima facie case to proceed further, he is bound to frame the charge. At this stage the Magistrate cannot evaluate the evidence, as at the stage of final hearing after recording evidence. The attempt of the revision petitioners is to evaluate the materials in the light of the circumstances made out by non disclosure of the allegations raised herein, either before this Court in the Habeas Corpus proceedings or in the proceedings before the Matrimonial Court and the fact that she had appeared CRRP 3643/2008 3 before this Court in the Habeas Corpus petition was also not disclosed by the defacto complainant. 5. When the materials produced by the prosecution, relied on to prove the offence, if accepted would prima facie show the offence, learned Magistrate was fully justified in not discharging petitioners and instead framing charges. Therefore, I find no reason to interfere with that order. Revision petitioners are entitled to file application before the Magistrate for their exemption on each day, and if such an application is filed, appropriate order should be passed by the Magistrate. Revision petition is dismissed. M. SASIDHARAN NAMBIAR, JUDGE Okb/-