IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 30TH SEPTEMBER 2011 / 8TH ASWINA 1933 Crl.Rev.Pet.No. 1606 of 2011() ------------------------------ AGAINST THE JUDGEMENT/ORDER IN WPC.37861/2010 Dated 10/01/2011 CMP.1394/2011 of JUDICIAL FIRST CLASS MAGISTRATE'S COURT, KAYAMKULAM. .................... PETITIONER(S): ACCUSED 1 AND 2: ------------------------------------------------------ 1. SUKUMARAN, 'SURAMYA', T.C 10/1865, IAS COLONY, VATTIYOORKAVU VILLAGE, THIRUVANANTHAPURAM. 2. RAMANI SUKUMARAN, W/O. SUKUMARAN, SURAMYA, T.C 10/1865, IAS COLONY, VATTIYOORKAVU VILLAGE, THIRUVANANTHAPURAM. BY ADVS. SRI.PIRAPPANCODE V.S.SUDHIR, SRI.T.K.ANANDA KRISHNAN, SRI.JELSON J.EDAMPADAM. RESPONDENT(S): COMPLAINANT AND STATE: ----------------------------------------------------------------------- 1. BINU, S/O. CHELLAPPAN, PULIMOOTTIL VEEDU, CHIRAKKADA MURI, KAYAMKULAM VILLAGE, KAYAMKULAM.P.O, ALAPPUZHA - 690 502. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, OFFICE OF THE ADVOCATE GENERAL, HIGH COURT BUILDING, ERNAKULAM - 682 031. R1 BY ADVS. SRI.M.V.THAMBAN, SRI.R.REJI, SMT.THARA THAMBAN, SRI.B.BIPIN, SMT.REVATHY P.NAIR. R2 BY PUBLIC PROSECUTOR SMT.REKHA C,NAIR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 30/09/2011 ALONG WITH CRRP NO. 2097 OF 2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss CRRP.NO.1606/2011 APPENDIX PETITIONER'S ANNEXURES: ANNEX.1: COPY OF THE COMPLAINT DTD. 5/01/2011 FILED BY THE PETITIONERS AGAINST THE 1ST RESPONDENT. ANNEX.II: COPY OF THE FIRST INFORMATION REPORT IN CRIME NO.24/2011 OF VATTIYOORKAVU POLICE STATION. ANNEX.III: COPY OF THE PETITION AS MC.NO.11/2011 FILED BY THE DAUGHTER OF THE PETITIONERS BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE'S COURT II, THIRUVANANTHAPURAM AGAINST THE 1ST RESPONDENT. ANNEX.IV: COPY OF THE OBJECTION DTD. 7/03/2011 FILED BY THE 1ST RESPONDENT IN M.C.NO.11/2011 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE'S COURT, THIRUVANANTHAPURAM. ANNEX.V: COPY OF THE O.P.NO.59/2011 BEFORE THE FAMILY COURT, THIRUVANANTHAPURAM. ANNEX.VI: COPY OF THE PETITION DTD. 24/11/2010 FILED BY THE 1ST PETITIONER BEFORE THE DIRECTOR GENERAL OF POLICE, THIRUVANANTHAPURAM AGAINST THE 1ST RESPONDENT, HIS FATHER AND MOTHER. ANNEX.VII: COPY OF THE LETTER NO.1320/RTI-2/2011 KSD DTD. 3/05/2011 OF THE DEPUTY SUPERINTENDENT OF POLICE, KAYAMKULAM. ANNEX.VIII: COPY OF THE EXTRACT OF DIRECT PETITION REGISTER, PAGE NO.57, VOLUME 2 OF 2010. ANNEX.IX: COPY OF THE WP(C) NO.37861/2010 BEFORE THIS HON'BLE COURT. ANNEX.X: COPY OF THE JUDGMENT IN WP(C) NO.37861/2010. ANNEX.XI: COPY OF THE COMPLAINT DTD. 23/02/2011. RESPONDENT'S ANNEXURES: N I L /TRUE COPY/ P.A.TO JUDGE Kss S.S.SATHEESACHANDRAN, J. ---------------------------------------------- Crl.R.P. NOs. 1606 & 2097 OF 2011 --------------------------------------------- Dated this the 30th day of September, 2011. O R D E R These two revisions arise from the order dated 27.4.2011 in CMP 1394 of 2011, on the file of the Judicial First Class Magistrate, Kayamkulam. That was a complaint filed by the revision petitioner in Crl.R.P No.2097 of 2011 as against his wife, her parents and her brother imputing offences under Section 420, 470 and 380 r/w 34 of the Indian Penal code. The learned Magistrate after taking cognizance of the offences imputed in the complaint proceeded with an enquiry in which the complainant and his witnesses were examined. On the basis of the materials tendered in such enquiry the learned Magistrate ordered summons to the parents of the wife of the complainant, and as against the other accused named, his wife and brother, it was concluded there was no sufficient ground to proceed against them. The accused, against whom the Magistrate has ordered summons (the parents of the wife of the complainant) have filed Crl.R.P.No.1606 of 2011 questioning the legality, propriety and correctness of the orders passed by the Magistrate. Complainant has filed the other revision (Crl.R.P.No.2097 of 2011) Crl.R.P. NOs. 1606 & 2097 OF 2011 2 impeaching the correctness of the order of the Magistrate declining to issue summons against the other accused, namely his wife and her brother. 2. I heard the counsel on both sides. 3. Relying on some materials produced with their revision the accused as against whom summons were ordered by the Magistrate contend that the entire prosecution proceedings launched against them are nothing but an abuse of process of the court. Much before the filing of the present complaint matrimonial disputes having arisen between the complainant and his wife, it is the submission of the counsel, several cases are pending before the courts, and the present complaint is nothing but an attempt to shield the complainant from the imputations levelled in such proceedings pending for adjudication. On the other hand, the learned counsel for the complainant contending that no interference with the orders passed by the Magistrate for issuing summons to two of the accused, his in laws, is warranted in exercise of revisional jurisdiction, asserted that even in respect of the other accused, his wife and her brother, on the materials placed, the complainant has made out sufficient ground to issue summons against them and the Magistrate went wrong in declining to do so. 4. After going through the order of the learned Magistrate with reference to the submissions made by the counsel on both sides, I find no Crl.R.P. NOs. 1606 & 2097 OF 2011 3 ground whatsoever for interference. Suffice to state the discretion exercised by the Magistrate forming an opinion on the materials placed for ordering or refusing to order summons against the accused named is not to be interfered with in exercise of revisional jurisdiction unless such order is seen to be patently unsustainable under law for any reason whatsoever. In Amar Nath and others v. state of Haryana and others (AIR 1977 SC 2185) interpreting interlocutory order the Apex court held that even an order summoning the accused depending on the facts of the case can be interfered with in revision. That was a case where after some of the accused were released by the Magistrate, again summons was ordered to them. In that context it was stated that where orders which affect the substantive rights of the accused cannot be said to be interlocutory order and thus outside the purview of the revisional jurisdiction of the High Court. Exercise of revisional jurisdiction in respect of an order passed by the Magistrate directing issue of summons to the accused named or declining to pass such an order, has to be examined with reference to the facts and circumstance present in the case and also the reasons given by the Magistrate for passing such orders. There is nothing to indicate that there was no sufficient material before the Magistrate, after examining the complainant and witnesses, to issue summons against the parents of the Crl.R.P. NOs. 1606 & 2097 OF 2011 4 wife of the complainant. At that stage the Magistrate is not concerned with the question whether there is sufficient material to convict the accused but only whether there is sufficient ground on the allegations made out and also materials produced to proceed against them. Needless to point out that after receiving the summons, on appearance, it is open to the accused to seek their discharge at any stage of the proceedings as enjoined under Section 245(2) of the Code, if they are entitled to do so. Similarly, the conclusion formed by the learned Magistrate that no sufficient ground has been made out for issue of summons to the other two accused, the wife of the complainant and her brother, on the materials placed, also does not warrant interference especially where I find from the submissions made by the counsel on both sides that there is no impropriety or illegality in the orders so passed by the Magistrate. 5. The learned counsel for accused 1 and 2, the revision petitioners in Crl.R.P. 1606 of 2011, submitting that the first accused is a retired civil servant, formerly of the Indian Administrative Service, pleaded for grant of permanent exemption to both the accused. That question no doubt has to be examined by the Magistrate if any application seeking such relief is canvassed by the above accused before him. In the nature of the allegations and the offences imputed, I find no reason why such a request, if any, made Crl.R.P. NOs. 1606 & 2097 OF 2011 5 by the accused for exemption should not be allowed, imposing adequate and sufficient conditions for smooth completion of the proceedings. But, as already indicated it is for the Magistrate to pass appropriate orders thereof. If any application is moved by the aforesaid accused (A1 and A2) for exemption the Magistrate shall consider it on its merits taking note of the observations made above. Both revisions are dismissed. S.S.SATHEESACHANDRAN, JUDGE mns