IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 16TH JANUARY 2009 / 26TH POUSHA 1930 Crl.Rev.Pet.No. 48 of 2009() ---------------------------- AGAINST THE ORDER DATED 06/12/2008 IN CRMP 2492/2008 IN CC.76/2006 of JUDL.MAGISTRATE OF FIRST CLASS COURT, THIRUVALLA .................... REVN. PETITIONER(S): PETITIONERS/ ACCUSED 1 AND 2 ------------------------------------------------- 1. PHILIP WILLIAM, S/O WILLIAM PHILIP, KOVOOR VEEDU, PUNNAKUNNAM MURI,KUTTAPPUZHA VILLAGE THIRUVALLA TALUK. 2. RAMANI KOVOOR, KOVOOR VEEDU, RESIDING AT -DO- -DO- BY ADV. SRI.NAIR AJAY KRISHNAN SRI.R.T.PRADEEP RESPONDENT(S): STATE & DEFACTO COMPLAINANT ------------------------------------------ 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM. 2. ANJANA, D/O K.J.ALEXANDER, KODIATTU VEEDU, PUNNAKUNNAM MURI, MADAMUKKU, KUTTAPPUZHA VILLAGE, THIRUVALLA TALUK. PUBLIC PROSECUTOR C.M.NAZAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 16/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.R.P.NO.48 OF 2009 ------------------------------------------ Dated 16th January 2009 O R D E R Revision petitioners are accused 1 and 2 in C.C.76/2006 on the file of Judicial First Class Magistrate, Thiruvalla. Based on a report filed by Sub Inspector of Police, Thiruvalla, Magistrate took cognizance, against petitioners for the offence under Section 420 of Indian Penal Code. After the accused appeared they filed Crl.M.P.2492/2008 for an order of discharge under Section 239 of the Code of Criminal Procedure contending that offence under Section 420 is not made out. Defacto complainant filed Crl.M.P.589/2008 for a direction for further investigation under Section 173(8) of the Code contending that investigation was not conducted for the offence under Section 498 A of Indian Penal Code. Learned Magistrate heard both petitions together. As per order dated 6/12/2008, it is found that though offence under Section 420 of Indian Penal Code is not made out, ingredients of the offence under Section CRRP 48/09 2 498A is made out on the materials produced along with the final report under Section 173(2) of the Code and therefore revision petitioners cannot be discharged under Section 239 of Cr.P.C as sought for and dismissed the petition. Finding that on the materials charge could be framed for the offence under Section 498 A of Indian Penal Code prayer for further investigation was rejected. Order is challenged in this petition filed under Sections 397 and 401 of the Code. 2. Learned counsel appearing for revision petitioners and learned Public Prosecutor were heard. 3. Argument of the learned counsel is that they were asked to defend only the allegation that they committed an offence under Section 420 of Indian Penal Code which is found to be not made out by the learned Magistrate and they did not get opportunity to contend that that offence under Section 498 A was not made out. It is argued that without affording an opportunity to claim an order of discharge for the offence under Section 498 A, learned Magistrate was not justified in holding that charge is to be framed for the offence under Section 498 A. Learned counsel argued that only offence, on the date on which cognizance was taken, was CRRP 48/09 3 Section 420 of Indian Penal Code and when the learned Magistrate on the materials relied on by the prosecution found that such an offence will not lie, without an investigation and report making out an offence under Section 498 A of Indian Penal Code and without affording opportunity to the accused to seek an order of discharge under Section 239 of the Code court was not justified in framing a charge. Reliance was placed on the decision of Apex court in State of Orissa v. Habibullah Khan (2003 (12) SCC 129). 4. Learned Public Prosecutor pointed out that first information statement as well as other materials available before the trial court which is bound to be considered by the Magistrate while considering a claim for discharge under Section 239 of Cr.P.C and framing of charge under Section 240 of Cr.P.C prima facie establish commission of an offence under Section 498 A of Indian Penal Code and in such circumstances, it is for the Magistrate to frame the charge and the order is perfectly legal and warrants no interference. 5. Question considered by the Apex court in Habibullah Khan's case (supra) was an order passed by CRRP 48/09 4 the High Court of Orissa under Section 482 of the Code quashing a charge framed by the Special Judge under Section 13(2) of the Prevention of Corruption Act. High Court had held that the order of the Special Judge taking cognizance became non est and therefore a charge should not have been framed. Apex court in paragraph 5 of the decision held that Special Judge was perfectly correct in framing a charge on the materials available discarding the further report filed under Section 173(8) and based on the final report filed under Section 173(2) of the Code. Argument of the learned Prosecutor relying on paragraph 16 of the judgment submitted that powers of the Magistrate taking cognizance on a police report was absolute and it was held that it is for the Magistrate to take note of the statements of the witnesses examined by the police during investigation and take cognizance of the offence made out and issue process to the accused and opinion of the investigating officer is not binding on the Magistrate and Magistrate can ignore the conclusion arrived at by the complainant and evidently applying his mind to the facts emerging from the investigation and taking cognizance of the offence in exercise of his CRRP 48/09 5 powers under Section 190(1) (b) directed issue of process to the accused and in such an event Magistrate is not bound to follow the procedure provided under Section 200 and 202. The decision does not lay down the law and without taking cognizance of an offence, a Magistrate cannot frame for the offence as charge provided under Section 240 of Cr.P.C. Though an offence under Section 420 was not prima facie made out, learned Magistrate found that on the materials ingredients of an offence under Section 498 A of Indian Penal Code is made out and therefore held that a charge is to be framed for the said offence, I do not find any reason to interfere with the order in the light of the materials which was made available by the learned Public Prosecutor at the time of arguments. Revision petition is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.