IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 17TH JUNE 2011 / 27TH JYAISHTA 1933 Crl.Rev.Pet.No. 1493 of 2011() ------------------------------ CMP.315/2010 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, TRIVANDRUM .................... REVN. PETITIONER: REVN. PETITIONER/COMPLAINANT. -------------------------------------------------- ASHOK KUMAR, AGED 48 YEARS, S/O.PURUSHOTHAMAN,ASHOKA MANDIRAM, WINNER'S NAGAR, PEROORKAD,TRIVANDRUM. BY ADV. SRI.T.RAJESH RESPONDENT: ------------------- STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. BY P.P. SRI .V.TEK CHAND. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 17/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ------------------------------------------ Crl.R.P. No.1493 of 2011 ---------------------------------------- Dated the 17th Day of June , 2011 ORDER The revision petitioner is the complainant in a private complaint, as he is aggrieved by the order dated 3.2.2011 in CMP No.315/2010 of the court of Judicial First Class Magistrate-II, Thiruvananthapuram by which the learned Magistrate dismissed the above complaint under Section 203 Cr.P.C. 2. The above complaint was filed alleging offences under sections 120(B), 378, 425, 436, 441 read with Section 34 IPC against the accused therein. According to the complainant, in spite of the order of injunction issued by the Munsiff Court, Thiruvananthapuram, vide order dated 2.4.2008 in O.S.No.670/2008, the accused on 30.5.2009 trespassed into the plaint schedule property, i.e. 2.5 cents of land in Sy.No.528/3 of Peroorkada village and demolished the tuition centre and set fire to the remnants of the tuition centre and committed theft of furnitures and a sum of Rs.5000/-. The learned Magistrate on receiving the CRL.R.P 1493/11 -:2:- complaint, recorded the sworn statement of the complainant and CW2, witness of the complainant. According to the learned Magistrate, neither in the sworn statement of the complainant nor in the statement of the witness disclosed any offence. Accordingly, the complaint was dismissed under section 203 Cr.P.C. It is the above order challenged in this Crl.R.P. 3. I have Sri T.Rajesh, the learned counsel appearing for the petitioner and I have perused the order impugned. 4. From the order impugned, it can be seen that a serious civil dispute is pending between the plaintiff/complainant on one side and the first accused in the complaint on the other side. As borne out from paragraph 3 of the impugned order, the complainant has stated that on 30.5.09, the accused removed his shed where he was conducting his tuition centre and also took away the furnitures and a sum of Rs.5000/-. However, the learned Magistrate has observed that neither in the complaint nor in the sworn statement of the complainant CRL.R.P 1493/11 -:3:- or his witness, there is no allegation to attract offence under section 120(B) and 436 of IPC. But there is no discussion as to whether the other offences alleged in the complaint are attracted or not. If the sworn statement of the complainant and his witness, during the deposition, confined to the allegations regarding the removal of furnitures and Rs.5000/-, certainly, the Magistrate has to assign reason for not taking cognizance for the offences connected with such allegation. In that sense, the order of the learned Magistrate is not a speaking one. Since the civil suit is pending before the civil court, at this stage, this court cannot presume that, the complaint is filed with mala fide intention to harass the accused or the accused therein has not committed the offences alleged against them. Therefore, according to me, having regard to the facts and circumstances involved in this case, especially, in the background of pendency of the civil suit, the learned Magistrate ought to have considered the materials and evidence very carefully and to come into a conclusion either in favour of the complainant or against him but by CRL.R.P 1493/11 -:4:- assigning sound reasons, but the order impugned is bereft of such reasons and therefore the matter requires reconsideration. In the result, this Crl.R.P. is disposed of setting aside the order dated 3.2.2011 in CMP No.315 of 2010 of the court of Judicial First Class Magistrate-II, Thiruvananthapuram and remitted the matter back to the same court for fresh consideration and to pass appropriate orders afresh in the manner indicated above. Accordingly, the revision petitioner is directed to appear before the trial court on 19th July, 2011 on which date the learned Magistrate is directed to restore the complaint, i.e. CMP No.315/2010, on file and the learned Magistrate is free either to dismiss the complaint again or to proceed with the complaint further. V.K.MOHANAN, JUDGE kvm/- CRL.R.P 1493/11 -:5:- kvm/-