IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 5TH APRIL 2011 / 15TH CHAITHRA 1933 Crl.Rev.Pet.No. 856 of 2011() ----------------------------- CC.314/2009 of JUDL. MAGISTRATE OF FIRST CLASS, KOTTAYAM .................... REVN. PETITIONER(S): REVISION PETITIONER/PETITIONER. ---------------------------------------------------- BINDHU PHILIP, ELAVUMKAL HOUSE, SEMINARI BHAGOM, VADAVATHOOR KARA, VIJAYAPURAM VILLAGE, KOTTAYAM. BY ADV. SRI.C.S.MANU SRI.S.K.PREMRAJ RESPONDENT(S): DEFACTOR COMPLAINANT & RESPONDENT. ------------------------------------------------- 1. JACOB KURIAN, S/O. CHACKO KURIAN, ELAVUMKAL HOUSE, SEMINARI BHAGOM, VADAVATHOOR KARA, VIJAYAPURAM VILLAGE, KOTTAYAM, PIN - 686 001. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.SABU SREEDHARAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 05/04/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J ------------------------------- Crl.R.P.NO.856 OF 2011 ------------------------------------------------- Dated this the 5th day of April, 2011. ORDER The challenge in this revision petition is against the order dated 15.07.2010 in C.M.P.No.4040/2010 in L.P No.94/2010 in C.C.No.314/2009 of the court of Judicial First Class Magistrate Court-I, Kottayam by which the learned Magistrate declined the request of the revision petitioner for a discharge under Section 258 of Cr.P.C. 2. I have heard the counsel for the petitioner and also the learned Public Prosecutor. I have perused the order impugned. 3. The main contention taken for the counsel for the petitioner is that except Section 294(b), all other offences involved the above case are non-cognizable offence and Section 294(b) is incorporated with oblique motive by the Police so as to proceed with the investigation without obtaining the prior sanction of the concerned Magistrate. 4. At this stage, I am not proposed to go into the merits or demerits of the order passed by the learned Magistrate, especially, in the light of the above submission made by the counsel for the petitioner. From the impugned order it appears Crl.R.P.NO.856 OF 2011 2 that the learned Magistrate considered the question of discharge based upon the contentions that taken before the learned Magistrate regarding the delay that occurred in registering the FIR and the want of medical records to prove the hurt. The above grounds are found a place in Annexure-4 petition. In paragraph 3 of the impugned order the learned Magistrate observed that: “Section 227 is misquoted and the prayer is considered U/S. 258 Cr.P.C. To seek discharge, the main grounds urged are delay in registering FIR, and want of medical records to prove hurt. Seen that date of occurrence is 30.1.09 and FIR lodged on 21.5.09.” As evident from Annexure-4 petition and from the impugned order, it is crystal clear that the contention now taken before this Court has not addressed the learned Magistrate at the time of consideration of the petition for discharge. Therefore, according to me, it is only just and proper to relegate the petitioner to approach the court below to raise such contention and to have a decision of the learned Magistrate on that point. In the result, this revision petition is disposed of setting aside the order dated 15.7.2010 in CMP No.4040/2010 in Crl.R.P.NO.856 OF 2011 3 L.P.No.94/2010 in CC.No.314/2009 of the court of Judicial First Class Magistrate-I, Kottayam and remanded the matter to the same court for fresh consideration and to pass fresh orders after considering the contention of the petitioner which, I indicated earlier. It is made clear that the impugned order is set aside only for the purpose of enabling the the Magistrate to pass fresh orders. As the case is pertained to the year 2009, the learned Magistrate is directed to pass appropriate orders after hearing the petitioner as well as the prosecution as expeditiously as possible. V.K.MOHANAN, JUDGE pm