IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 8TH APRIL 2011 / 18TH CHAITHRA 1933 Crl.Rev.Pet.No. 1023 of 2011() ------------------------------------------- C.C.NO. 544/2008 of JUDICIAL MAGISTRATE OF FIRST CLASS COURT, IRINJALAKUDA .................... REVN. PETITIONER/ 1ST ACCUSED --------------------------------------------------- JOSHY, S/O.PUTHUPULLIPARAMBIL MATHEW, MULANGU DESOM THOTTIPAL VILLAGE MUKUNDAPURAM TALUK, THRISSUR DISTRICT. BY ADV. SRI.C.A.CHACKO RESPONDENT(S)/ COMPLAINANT & STATE --------------------------------------------------------------- 1. RALI SANTHOSH, W/O.SANTHOSH CHEERAMBATH HOUSE, MULANGU DESOM THOTTIPAL VILLAGE, MUKUNDAPURAM TALUK. PIN- 680 001 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI.V.TEK CHAND THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 08/04/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts V.K.MOHANAN, J ------------------------------- Crl.R.P.NO.1023 OF 2011 ---------------------------------------------- Dated this the 8th day of April, 2011. ORDER Aggrieved by the order dated 14.3.2011 in C.M.P. No.167/2010 in CC.No.544 of 2008 of the court of Additional Munsiff/Judicial First Class Magistrate, Iringalakuda, the petitioner therein, who is the first accused in the above calendar case, preferred this revision petition and challenged the order declining the request of the petitioner for a discharge. 2. I have heard the counsel for the petitioner and I have perused the order impugned and other materials produced along with the revision petition. 3. Against the revision petitioner and two other accused respondents/complainant preferred a private complaint under Section 190(1) of Cr.P.C alleging the offences punishable under Section 498(a) and Section 34 of IPC. According to the petitioner the accused numbers 2 and 3 are no more. Initially, the petitioner herein and others accused have moved this court an application under Section 482 of Cr.P.C to quash the Annexure- A1 complaint. This Court by order dated 2.12.2008 in Crl.M.C. No.3904/2008 disposed the above petition with certain direction Crl.R.P.NO.1023 OF 2011 2 to the learned Magistrate. A copy of the above order of this Court produced as Annexure-3. According to the petitioner on the strength of Annexure-A3 order, the petitioner had approached the very same learned Magistrate by filing a petition under Section 245(2) of Cr.P.C seeking his discharge, but the said petition was dismissed by the learned Magistrate wide Annexure-4 order. In the said order the learned Magistrate has observed that whether these accused have committed the offence is a matter to be decided at the later stage of the proceedings and not before evidence is adduced and according to the learned Magistrate at that stage the petition under Section 245(2) of Cr.P.C cannot be allowed and to discharge the accused before the evidence is adduced under 244 of Cr.P.C (emphasis supplied). 4. Therefore, the petitioner again approached the very same Magistrate by filing a petition for discharge. It is the above petition now stand dismissed against which the present revision petition is filed. 5. The learned counsel for the petitioner submitted that in the order impugned, there is no decision on merit since the learned Magistrate simply dismissed the petition for the sole Crl.R.P.NO.1023 OF 2011 3 reason that the petition shown to have filed under Section 245(2) of Cr.P.C. The learned counsel for the petitioner submitted that the above approach of the learned Magistrate is incorrect and improper, since, misquoting of procedural section, cannot be made a ground to reject the prayer. According to the learned counsel petition for discharge ought to have been filed under Section 245(1) instead of Section 245(2) and therefore, the learned counsel submitted that the learned Magistrate may be directed to pass fresh order after having treated the petition already preferred by the petitioner and an application under Section 245(1) of Cr.P.C or in the alternative, the learned counsel submitted that if this Court so direct the petitioner is ready to file a proper petition Section 245(1) of Cr.P.C and in that event the learned Magistrate may be directed to consider such petitions on merit. 6. According to me there is some force in the submission made by the learned counsel. In this case it is relevant to note that on the strength of Annexure-A3 order, the petitioner had already filed a petition under Section 245(2) of Cr.P.C which resulted in Annexure-4 order and therefore, in the light of the benefit granted in favour of the petitioner as per Annexure-A3 Crl.R.P.NO.1023 OF 2011 4 order, it cannot be presumed for a moment that the petitioner has filed again petition under Section 245(2) of Cr.P.C instead of Section 245(1) of Cr.P.C especially when the learned Magistrate had already issued an order, as evident by Annexure-A4 dismissing the petition filed by the petitioner under Section 245 (2). According to me in the light of the facts and circumstances involved in this case it was at the disposal of the learned Magistrate to treat as the second petition, as a petition filed under Section 245(1) of Cr.P.C and to pass an order on merit, in stead of dismissing the petition on the ground of misquoting of section. Therefore, the order impugned is not sustainable and the same is liable to be set aside. In the result, this revision petition is disposed of setting aside the order dated 14.03.2011 in C.M.P. No.167/2010 and remitting the matter back to the trial court and the trial court is directed to consider the matter afreshly, in case the petitioner prefer a proper petition under Section 245(1) of Cr.P.C, within three weeks from today and the learned Magistrate is further directed to dispose such petition within another 3 months from the date of filing of such petition in accordance with the procedure, law and merit. The petitioner is directed to produce Crl.R.P.NO.1023 OF 2011 5 the copy of the order before the learned Magistrate along with the petition which is directed to be filed before the court below. This Crl.R.P. is disposed of accordingly. V.K.MOHANAN, JUDGE pm