IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 10TH JULY 2009 / 19TH ASHADHA 1931 CRL.REV.PET.NO. 2170 OF 2009() ---------------------------------------------- AGAINST THE JUDGEMENT/ORDER IN ZCRMC.787/2009 CC.787/2005 OF JUDL.MAGISTRATE OF FIRST CLASS COURT- I,OTTAPPALAM .................... REVN. PETITIONER(S): ACCUSED NO.1 -------------------------------------------------------- PANCHALI, AGED 48 YEARS, W/O.UNNIKRISHNAN, PULIKKAL, VADANAMKURISSI AMSOM DESOM, OTTAPPALAM TALUK. BY ADV. SRI.T.RAMPRASAD UNNI SRI.MANU TOM RESPONDENT(S): STATE,COMPLAINANT & ACCUSED NO.2 -------------------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SMT.JANAKI @ SREEMATHI, AGED 49 YEARS, D/O.KELAPPAN, POOVATHINKAL, VADANAMKURISSI AMSOM, DESOM, OTTAPPALAM TALUK, PALAKKAD DISTRICT. 3. SMT.SUPRIYA, D/O.PANCHALI, AGED 22 YEARS, PULIKKAL, VADANAMKURISSI AMSOM, DESOM, OTTAPPALAM TALUK, PALAKKAD DISTRICT. BY PUBLIC PROSECUTOR SHRI P.R. JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 10/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.2170 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 10th day of July , 2009 O R D E R -------------- Heard senior counsel, Shri K.Ramakumar appearing for petitioner and Public Prosecutor appearing for respondent No.1. 2. Revision is against the order passed by learned Judicial First Class Magistrate, Ottappalam in Crl. M.P. No.430 of 2009 in C.C.No.787 of 2005 refusing to discharge the petitioner under Section 245(1) of the Code of Criminal Procedure (for short, “the Code”). Case against petitioner is that she along with accused No.2 wrongfully restrained respondent No.2/complainant, voluntarily caused hurt to her and criminally intimidated her and thereby committed offences punishable under Sections 341, 324 and 506(ii) read with 34 of the Indian Penal Code (for short, “the IPC”). Petitioner along with accused No.2 filed Crl.M.C. No.3835 of 2005 in this Court challenging the order taking cognisance of the offences. This Court directed learned magistrate to consider the plea of petitioner and accused No.2 at the stage of framing charge under Section 245 of the Code. Pre-charge evidence was taken. P.Ws.1 to 3 were examined and documents were proved on the side of respondent No.2. Learned magistrate after hearing both sides observed that “evidence tendered by CRL. R.P. No.2170 of 2009 -: 2 :- Pws.1 and 3 and PW2 the doctor coupled with the documentary evidence Exts.P1 and Ext.P2 wound certificate sufficiently warrant a presumption that the accused have committed the offences U/ss.341, 324, 506(II) r/w 34 IPC”. Accordingly charge was framed against petitioner and accused No.2. 3. Learned senior counsel contends that the order passed by learned magistrate suffers from an illegality in that learned magistrate has gone to the extent of holding that it could be presumed from the evidence that petitioner and accused No.2 committed offences as alleged. 4. No doubt what was required to be considered under Section 245(1) of the Code is only whether a case if urebutted would warrant conviction is made against the petitioner and accused No.2. Learned magistrate need not have used the phraseology that “from the materials on record it could be presumed that petitioner and accused No.2 committed the offences as alleged”. But I can only understand the phraseology used as referring to the requirements of Sec.245(1) of the Code. 5. It is observed by learned magistrate that the main challenge was as to the date of commission of the offence stated in CRL. R.P. No.2170 of 2009 -: 3 :- the complaint which was found to be not correct and which matter was considered by this Court. While disposing of Crl.M.C. No.3835 of 2005 referred to above this Court observed that mere wrong statement regarding date of occurrence by itself is not sufficient. It is seen from the order impugned that learned magistrate has referred to the evidence of P.Ws.1 to 3 and the documents proved to hold that in the facts and circumstances charge could be framed against petitioner. On going through the order under challenge it is seen that respondent No.2 has produced sufficient evidence to reach the satisfaction referred to in Sec.245(1) o the Code. Learned magistrate has taken that view though using an inappropriate phraseology, on the evidence on record. 6. I do not find reason to interfere with the order under challenge. I make it clear that trial of the case shall be conducted untrammelled by any of the observations contained in the impugned order. With the above observation, this revision is dismissed. THOMAS P.JOSEPH, JUDGE. vsv