IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 28TH JANUARY 2009 / 8TH MAGHA 1930 Crl.Rev.Pet.No. 3062 of 2008() ------------------------------ AGAINST THE ORDER DATED 14/08/2008 IN CRMP 150/02 IN CC.72/2000 of ENQUIRY COMMR. & SPL. JUDGE, THIRUVANANTHAPURAM .................... REVN. PETITIONER/APPELLANT/ ACCUSED NO.2 --------------------------------- SUNNY PAUL, S/O. PAULOSE, PULINATTU HOUSE, IYRAPURAM.P.O, ERNAKULAM. BY ADV. SRI.P.VIJAYA BHANU SRI.M.REVIKRISHNAN RESPONDENT/ RESPONDENT/COMPLAINANT ------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. P.N. SUKUMARAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRRP 3062/2008 ORDER ON C.MA. 9200 OF 2008 IN CRL.R.P. 3062 OF 2008 DISMISSED. SD/- M. SASIDHARAN NAMBIAR, JUDGE 28.1.2009 OKB - TRUE COPY - P.A. TO JUDGE M. SASIDHARAN NAMBIAR,J. ------------------------------------------------- CRL.R.P.No.3062 OF 2008 -------------------------------------------------- Dated this the 28th day of January, 2009 O R D E R Revision petitioner is the second accused in C.C.72 of 2000 on the file of Special Judge, Vigilance, Thiruvananthapuram. Revision petitioner is challenging the order passed by the Special Judge dismissing Crl.M.P.90 of 2002 filed by him for discharge under section 239 of Code of Criminal Procedure. Crl.M.P.90 of 2002 was heard along with similar petitions filed by the other accused. As per common order dated 14.8.2008, learned Special Judge dismissed the petitions holding that charge is to be framed against the accused and on the materials produced by prosecution accused cannot be discharged. Argument of the learned counsel appearing for revision petitioner is that based on similar allegations another contractor along with the former Executive Engineer and Chief Engineer were prosecuted in C.C.1 of 1997 and though the Special Judge convicted them in Crl. Appeals 388, 391, 392, 393 and 412 of 1997, this Court set aside the conviction and acquitted the CRRP 3062/2008 2 accused and the said order of acquittal was confirmed by the Apex Court and in such circumstances it will be mere waste of public money and valuable time of the Court and so revision petitioner is to be discharged. Learned counsel also argued that as per Annexure-B notification issued by the Government recommending payment to another contractor on the agreed rate as well as enhanced rate for the extra work executed show that department has no right to direct the contractor to dump the excess soil in the property of a private person and therefore the reason for acquittal in Crl.Appeal 391 of 1997 is applicable to the facts of the case and learned Special Judge should have discharged the revision petitioner. Learned counsel also sought a direction, in case the revision is not to be allowed, to the Special Judge to consider the question once again in the light of the judgment in Crl.Appeal 391 of 1997 and Annexure-B order. 2. Learned Public Prosecutor submitted that at the stage of hearing the prosecution and the defence for considering whether the accused is to be discharged or charge is to be framed, only the final report submitted by the prosecution under section 173 of Code of Criminal Procedure along with documents CRRP 3062/2008 3 relied on by prosecution can be looked into and the reasons for acquittal in Crl. Appeal 391 of 1997 cannot be applied to the facts of this case and as rightly found by the Special Judge it is for the prosecution to prove availability of land for dumping the soil which was pointed out to the contractor and therefore based on the judgment in Crl. Appeal 391 of 1997 revision petitioner is not entitled to an order of discharge. It was also argued that even if under Annexure-B order, another contractor was granted payment for the extra work, that will not enable revision petitioner to an order of discharge when with on the materials produced prosecution prima facie showed that as against Rs.6,79,735/- covered by the contract Rs.32,49,750/- was sanctioned and in such circumstances learned Special Judge rightly dismissed the petition for discharge and there is no reason to interfere with the order. 3. Section 239 of Code of Criminal Procedure provides for an order of discharge if on considering the police report and the documents sent with it under section 173 of Code of Criminal Procedure and hearing the prosecution and the defence the Magistrate finds that the charge against the accused is CRRP 3062/2008 4 groundless. On the other hand, if upon such consideration the Magistrate is of the opinion that there is ground for presuming that the accused has committed an offence as alleged by the prosecution, it is for the Magistrate to frame the charge in writing. As rightly found by learned Special Judge what is to be considered by the Court at the stage of hearing under section 239 is only whether there are materials to prima facie hold an opinion that there is sufficient ground for presuming that the accused committed the offence or if it a case of no ground to proceed against the accused. What could be looked into is not the documents produced by the defence, as at that stage defence has no right to produce evidence. The learned Special Judge considered the materials in the proper perspective and found that on the materials there is no reason to hold the case groundless as against the petitioner. Though learned counsel relied on the judgment in Crl. Appeal 391 of 1997 and it was argued that in that case also absence of a specified plot for dumping the excess soil was considered by the Court and found that in the absence of a specified plot the contractor is entitled to get remuneration for the extra work, the question whether in CRRP 3062/2008 5 this case a plot was pointed out by the department and whether excess soil could have been taken there, are all matters to be decided on the evidence to be let in. Therefore based on the judgment in Crl. Appeal 391 of 1997, revision petitioner is not entitled to contend that he is to be discharged. Similar is the case on the effect of Annexure-B notification relied on by the revision petitioner. These are facts which are available to the revision petitioner to be pressed into service at the time of evidence and are not matters to be relied upon for an order of discharge. Therefore I find no reason to interfere with the order dismissing the application for discharge. Revision petitioner is at liberty to rely on these materials at the time of evidence. Revision is dismissed. M. SASIDHARAN NAMBIAR, JUDGE okb