IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 9TH JANUARY 2009 / 19TH POUSHA 1930 Crl.Rev.Pet.No. 3429 of 2008() ------------------------------ CC.49/2008 of CHIEF JUDICIAL MAGISTRATE COURT, KOTTAYAM .................... REVN. PETITIONER(S)/PETITIONERS/ACCUSED 1 TO 3: --------------------- 1. SAMIR KUMAR MODI, S/O.K.K. MODI, MANAGING DIRECTOR, MODICARE LTD., 5-COMMUNITY CENTRE, NEW FRIENDS COLONY,NEW DELHI-110065, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER, P.K. MITTAL, S/O.S.K. MITTAL, RESIDING AT R/O J-58, SECTOR-41, NOIDA, UP 2. AJITH MATHEW, S/O.P.T. MATHEW, AREA MANAGER, MODICARE LTD., PALLIKKUNNEL HOUSE, U.C. COLLEGE.P.O, ALUVA TALUK, ERNAKULAM. 3. M.S. VINOD, S/O.SREEDHARAN HEGDEN, MADATHIL PARAMBIL HOUSE, KIZHAKKUM BHAGAM KARA, ETTUMANOOR VILLAGE, KOTTAYAM DISTRICT. BY ADV. SRI.M.K.DAMODARAN (SR.) SRI.MADHU RADHAKRISHNAN RESPONDENT(S): COMPLAINANT -------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR. 2. SUB INSPECTOR OF POLICE, VAKATHANAM POLICE STATION, VAKATHANAM, KOTTAYAM DISTRICT. PUBLIC PROSECUTOR SRI.MUHAMMED PUZHAKKARA THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 09/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.R.P.NO.3429 OF 2008 ------------------------------------------ Dated 9th January 2009 O R D E R Revision petitioners are accused 1 to 3 in C.C.49/2008 on the file of Chief Judicial Magistrate, Kottayam. Revision is filed under Sections 397 and 401 of Criminal Procedure Code challenging the order issued by the Magistrate taking cognizance of the offence under Section 2(c) and 4 of Prize Chits and Money Circulation Scheme (Banning) Act, 1978 (hereinafter referred to as 'the Act'). 2. Learned Senior counsel and learned Public Prosecutor were heard. 3. Learned Senior counsel argued that learned Magistrate did not apply his mind to the facts of the case and mechanically initialed on the place at the seal affixed by the office, on the final report submitted by the police under Sub section 2 of Section 173 of Criminal Procedure Code and the order is in violation of the provisions of Sections 190 and 204 of Criminal Procedure Code. Learned Senior counsel CRRP 3429/08 2 relying on the decisions of Apex court in M/s.Pepsi Foods Ltd. and another v. Special Judicial Magistrate and others (1998 SC 128) and State of Karnataka and another v. Pastor P.Raju (2006 (6) SCC 728) argued that issuance of summons to a person to appear as an accused in a criminal case is a very serious matter and the Magistrate should not have mechanically affixed his signature in the seal affixed by his office without applying his mind and therefore the order issuing summons for that sole reason is bad. Learned Senior counsel argued that evidently the Magistrate did not verify whether prima facie an offence under the Act was made out or not and on the facts and materials before the Magistrate cognizance should not have been taken. 4. On hearing the learned Senior counsel, I do not think it necessary for this court to interfere with the court at this stage. Offence under Section 2 (c) and 4 of the Act can only be tried as warrant trial. As provided under Section 239 of Criminal Procedure Code, if upon considering the police report and the documents sent with it under Section 173, CRRP 3429/08 3 Magistrate considers the charge against the accused to be groundless, accused shall be discharged. Respondents are entitled to file an application for an order of discharge under Section 239 raising all the contentions raised in this revision petition including the very question whether Act applies to the facts of the case. Learned Senior counsel relying on the decision of Apex court in State of West Bengal v. Swapan Kumar Guha (1982 SCC (Cri) 283) and in particular to paragraph 8 of the judgment argued that provisions of Section 2(c) of the Act does not apply to the scheme at all and therefore the Magistrate cannot take cognizance of the offence. Learned Public Prosecutor relying on paragraph 7 of the same decision argued that both conditions provided for attracting the offence has been established in the case and therefore contentions that the Act does not apply to the facts of the case is not sustainable. These are contentions to be urged before the learned Magistrate, when a petition is filed for discharge under Section 239 of Criminal Procedure Code. Learned Senior counsel also submitted that if petitioners are CRRP 3429/08 4 directed to be approached under Section 239 they have unnecessarily to appear before the Magistrate. That difficulty could be avoided by directing the Magistrate not to insist for the presence of petitioners at this stage and petitioners are permitted to appear before the Magistrate through their counsel and move an application for discharge under Section 239 of Code of Criminal Procedure. Learned Magistrate has to consider all the relevant aspects, including the effect of Annexures 2 and 3 produced in this revision and pass appropriate orders in accordance with law. Revision is disposed accordingly. M.SASIDHARAN NAMBIAR, JUDGE. uj.