IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 5TH FEBRUARY 2009 / 16TH MAGHA 1930 Crl.Rev.Pet.No. 2952 of 2008(D) ------------------------------- AGAINST THE ORDER DATED 16/05/2008 IN CMP 3078/2008 IN CC.668/2006 of JUDL.MAGISTRATE OF FIRST CLASSCOURT, KOLENCHERRY .................... REVN. PETITIONER(S)/APPELLANT/ ACCUSED: ---------------------------- M.P. CHOTHY, ADOCATE, MACHERIKUDY HOUSE, MANGALLOOR, KOLENCHERRY. BY ADV. MR.P.P.JACOB RESPONDENTS/RESPONDENTS/DEFACTO COMPLAINANT & STATE: ---------------------------- 1. P.V. SAJAN, S/O. VARGHESE, THELAKKAL HOUSE, MEKADAMBU, KOLENCHERY. 2. STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM PUBLIC PROSECUTOR MR. MUHAMMED PUZHAKKARA FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 05/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRRP 2952/08 ORDER ON C.MA.8929 OF 2008 IN CRL.R.P.2952 OF 2008 DISMISSED. SD/- M. SASIDHARAN NAMBIAR, JUDGE 5.2.2009 OKB - TRUE COPY - P.A. TO JUDGE M. SASIDHARAN NAMBIAR,J. ------------------------------------------------- CRL.R.P.No.2952 OF 2008 -------------------------------------------------- Dated this the 5th day of February, 2009 O R D E R Revision petitioner is the accused in C.C.668 of 2006 on the file of Judicial First Class Magistrate, Kolenchery. Prosecution case is the he was the driver of Maruthi Car KL-8V 7240 on 6.7.2006 at about 10.40 a.m. and by such rash and negligent driving car hit on the autorikshaw and voluntarily caused hurt to the passengers of the autorikshaw and thereby committed offences under section 279 and 337 of Indian Penal Code. Revision petitioner on his part filed a private complaint and when a refer report was filed, he filed a protest complaint which was taken cognizance by the Magistrate. In that case the driver of the autorikshaw was the accused. On receipt of the summons issued by the learned Magistrate after taking cognizance, the driver of the autorikshaw pleaded guilty and he was sentenced to fine for the offence under section 279 and 337 of Indian Penal Code. Armed with that judgment, revision petitioner filed CMP. 3078 of 2008 under section 258 of Code of CRRP 2952/2008 2 Criminal Procedure for an order for discharge contending that as the driver of the autorikshaw admitted that the incident occurred due to his negligence, revision petitioner cannot be convicted and he is to be discharged. 2. Learned Magistrate dismissed the application holding that on the materials available, for the sole reason that the driver of the autorikshaw was convicted in a private complaint filed by the revision petitioner by pleading guilty, the revision petitioner cannot be discharged under section 258 of Code of Criminal Procedure. The order is challenged in the revision. 3. Learned counsel appearing for revision petitioner was heard. 4. The argument of the learned counsel is that when prosecution case is that the incident occurred due to rash and negligent driving of the car by the revision petitioner, and Magistrate convicted the driver of the autorikshaw finding that he was rashly and negligently driving the autorikshaw and caused the incident, there is no necessity to proceed with the trial and instead learned Magistrate should have discharged the revision petitioner as sought for. Learned counsel argued that CRRP 2952/2008 3 as the driver of the autorikshaw alone could be the material witness in the case and when he pleaded guilty and admitted his negligent driving in the other case he cannot be expected to depose against the revision petitioner in this case and therefore no purpose will be served by undertaking the ordeal of trial Court and the valuable time of the Court could also be saved and therefore learned Magistrate should have discharged the revision petitioner. 5. Section 258 of Code of Criminal Procedure enables a Magistrate for reasons to be recorded by him to stop the proceedings at any stage without pronouncing judgment and where such stoppage of proceedings is made after the evidence of the principal witnesses has been recorded, pronounce a judgment of acquittal and in any other case, release the accused, which shall have the effect of discharge. Though learned counsel argued that the revision petitioner is to be discharged in view of the admission of rash and negligent driving by the driver of the autorikshaw, revision petitioner is not entitled to get an order of discharge under section 258 for that reason. Prosecution is not relying on the solitary version of the driver of CRRP 2952/2008 4 the autorikshaw. First information statement was recorded from the passenger of the autorikshaw. Magistrate was justified in holding that on the materials the revision petitioner is not entitled to an order of discharge under section 258 of Code of Criminal Procedure. Question whether there is evidence in support of the prosecution case that revision petitioner caused the incident by his rash and negligent driving, is a matter which could be decided only on evidence. I find no reason to interfere with the order. Revision is dismissed. M. SASIDHARAN NAMBIAR, JUDGE okb