IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 25TH MARCH 2011 / 4TH CHAITHRA 1933 Crl.MC.No. 606 of 2011() ----------------------------------- CC.NO. 36/2006 of JUDICIAL MAGISTRATE OF FIRST CLASS-I, KOZHIKODE .................... PETITIONER(S): ACCUSED NO.4 ------------------------------------------------ K.V. KUNHAMMED KOYA, S/O.P.I. AHAMMED KOYA HAJI, KOYAPPATHODI BUNGLAVE, CHEVAYOOR AMSOM DESOM, MALAPARAMBA, KOZHIKODE TALUK. BY ADVS. SRI.R.SUDHISH SRI.P.P.BALAN SMT.M.MANJU SRI.K.R.RANJITH RESPONDENT(S): -------------------------- 1. STATE OF KEREALA, REP. BY DEPUTY SUPERINTENDENT OF POLICE, CBCID, KOZHIKODE, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. KOLAKKADAN MOOSA HAJI, S/O. ABOOBACKER, AGED 60 YEARS, KODIYATHUR AMSOM CHERUVADI DESOM, KOZHIKODE TALUK.PIN- 673 358 R1 BY PUBLIC PROSECUTOR SRI.K.J.MOHAMMED ANZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 25/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts THOMAS P.JOSEPH, J. ==================================== Crl. M.C. No.606 of 2011 ==================================== Dated this the 25th day of March, 2011 O R D E R Petitioner is the 4th accused in Crime No.128 of 1998 of Chevayur Police Station, later taken up by the CBCID and re- registered as Crime No.55/CR/2001 and C.C. No.36 of 2006 of the court of learned Judicial First Class Magistrate-I, Kozhikode for offences punishable under Sections 406, 468, 471 and 477A of the Indian Penal Code. Case is that accused 1 to 12 with mala fide intention to get more funds from the Central Government by grand for Orphans manipulated accounts and forged documents. It is alleged that during 1990-92, `8,44,603 was obtained fraudulently, first accused misappropriated the same and accused 2 onwards conspired together and facilitated the said offence. I am told that some of the accused are already dead. According to the petitioner, allegation against him is only under Section 120B of the IPC. He is sought to be roped in by virtue of Sec.34 of the IPC. Petitioner filed C.M.P.No.2081 of 2009 to discharge him. That petition was dismissed by the learned Magistrate which the learned Additional Sessions Judge has confirmed. Those orders are CRL.M.C. No. 606 of 2011 -: 2 :- under challenge. Learned counsel submits that there is no material on record to show that petitioner is a party to the alleged conspiracy or shared common intention with any of the accused who are alleged to have committed the offences. I have heard the learned Public Prosecutor also. 2. It is seen from Annexure-4, order that learned Magistrate has not considered the relevant materials to decide either way whether petitioner is involved or not. On the other hand it would appear that learned Magistrate did not go through the records for the reason that voluminous documents are produced by the investigating agency including report of the Forensic Science Laboratory concerning alleged forgery and several witnesses are also cited to prove the prosecution case. Learned Magistrate was of the view that actual involvement of the petitioner is a matter to be adjudicated at the final stage and that at the present stage by verifying prosecution records learned Magistrate is unable to follow the charge alleged against petitioner as groundless. So observing petition filed by the petitioner was dismissed. 3. When a petition is filed pointing out that there are no materials to frame charge it was necessary for the Magistrate to have referred to the relevant documents, may be voluminous in extent. That exercise does not appear to have been done by the CRL.M.C. No. 606 of 2011 -: 3 :- learned Magistrate. As such I am inclined to interfere with the order under challenge. Resultantly, Criminal Miscellaneous Case is allowed. Annexure-A3, order of the learned Judicial First Class Magistrate-I, Kozhikode in C.C. No.36 of 2006 and Annexure-A4, order of the court of learned Sessions Judge, Kozhikode in Cr. R.P. No.104 of 2008 are set aside. C.M.P. No.2081 of 2008 is remitted to the learned Magistrate for fresh decision. Learned Magistrate shall refer to the relevant materials and decide whether charge against petitioner is groundless or not. If the records are voluminous in extent and learned Magistrate finds it difficult to verify all the documents learned Magistrate can seek the assistance of the Assistant Public Prosecutor who in turn shall get the assistance of Investigating Officer concerned to find out the relevant materials so far as the case against petitioner is concerned. THOMAS P. JOSEPH, JUDGE. vsv