IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 25TH MAY 2011 / 4TH JYAISHTA 1933 Crl.MC.No. 1450 of 2011() ------------------------------------ CC.1435/2010 of JUDL.MAGISTRATE OF FIRST CLASS-I, PUNALUR .................... PETITIONER(S): ACCUSED 1 TO 3 -------------------------------------------------- 1. R.RAJESH KUMAR, AGED 33, S/O.RAJASEKHARAN PILLAI, RESHMI BHAVAN, MANAKKARA, SASTHAMKOTTA, KOLLAM-690 521. 2. S.RAJENDRAN, S/O.SIVARAMAN, AGED 38, CHAURAVILA PUTHENVEEDU, AYLARA.P.O., KOLLAM-691 312. 3. KANNAN.P., S/O.CHUDALAMUTHU.S., AGED 32 YEARS, DWARAKKAIL VEEDU, EDAPALAYAM.P.O., KOLLAM-691 309. BY ADV. SRI.LIJU.V.STEPHEN SRI.EBY AUGUSTINE SMT.INDU SUSAN JACOB RESPONDENT(S): STATE & COMPLAINANT ------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. NAVAKUMAR, S/O.KESAVA PILLAI, AGED 50, KOOPPUKATTIL VEEDU, NELLIMOODU, KULATHUPUZHA. 691 017. R1 BY PUBLIC PROSECUTOR SRI.K.J.MOHAMED ANZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 25/05/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss THOMAS P. JOSEPH, J. -------------------------------------- Crl.M.C. No.1450 of 2011 -------------------------------------- Dated this the 25th day of May, 2011. ORDER Petitioners are accused in C.C.No.1435 of 2010 of the court of learned Judicial First Class Magistrate-I, Punalur for offences punishable under Sections 323, 325, 341, 342, 294(b) and 506 and 24 of the Indian Penal Code. Petitioners who are the Sub Inspector, Constable and Police Driver of Koluthupuzha Police Station filed C.M.P.No.2323 of 2011 before the learned Magistrate seeking their discharge under Section 245 of the Code of Criminal Procedure (for short, “the Code”) on the ground that cognizance is taken without getting sanction under Section 197 of the Code. Learned Magistrate rejected that contention and dismissed C.M.P.No.2323 of 2011 which is under challenge before this Court under Section 482 of the Code. I have heard the learned counsel for petitioners and the Public Prosecutor on the maintainability and sustainability of this petition under Section 482 of the Code. 2. A Division Bench of this Court in Prabhakaran v. Excise Circle Inspector (1992 (2) KLT 860) while considering whether an order framing charge rejecting the contention of the accused is interlocutory or not observed in paragraph 15 that framing of charge may or may not amount to interlocutory order as it depends upon facts of the case, the statute under which proceedings have been initiated, as also the nature of objections raised against it Crl.MC No.1450/2011 2 etc. If the objection or objections raised against the order framing charge are such that upholding such objection/objections would result in termination of the proceedings, then framing of charge cannot be regarded as merely interlocutory order for the purpose of revisional jurisdiction under Section 397(2) of the Code. 3. Applying that principle to the facts of the present case, if the contention of the petitioners that without sanction under Section 197 of the Code learned Magistrate was not correct in taking cognizance of the offences against petitioners is accepted, consequence is that the proceeding against petitioners will have to be either dropped or, petitioners are to be discharged as provided under law. In otherwords, if the contention of petitioners is accepted, the court having no jurisdiction to take cognizance, proceeding before it has to be terminate in favour of petitioners. In that view of the matter I am not inclined to think that the order under challenge is interlocutory in character so that a revision will not lie in view of Section 397(2) of the Code and hence petitioners are to invoke the extraordinary power under Section 482 of the Code. It is true, as the Supreme Court has stated in Raj Kapoor and others v. State (Delhi Administration) and others (AIR 1980 SC 258) and Popular Muthiah v. State rep. by the Inspector of Police ((2006) 7 SCC 296) even when the revisional remedy is available, the power of the High Court under Section 482 of the Code is not taken away. But the procedure provided by the Code has to be followed. Petitioners have to challenge the impugned order by way of revision. 4. At this stage, learned counsel has sought permission to Crl.MC No.1450/2011 3 withdraw the Criminal Miscellaneous Case without prejudice to the right of petitioners to file revision before the appropriate court. Having regard to the circumstances I am inclined to allow that request. Resultantly this Criminal Miscellaneous Case is dismissed as withdrawn without prejudice to the right of petitioners to file revision before appropriate court as provided under law. The documents if any produced along with this Criminal Miscellaneous Case shall be returned to the counsel for petitioners on request. THOMAS P.JOSEPH, Judge. cks