IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 22ND JANUARY 2009 / 2ND MAGHA 1930 Crl.Rev.Pet.No. 151 of 2009() ----------------------------- CMP.1707/2008 of JUDL. MAGISTRATE OF FIRST CLASS-III, KOZHIKODE .................... REVISION PETITONER/PETITIONER -------------------------------------------------- SOUMINI, W/O.AJITH KUMAR, NAROLI HOUSE, CHELANNUR, AMBALATHUKULANGARA, KOZHIKODE. BY ADV. SRI.M.C.ANTONY RESPONDENT(S)/RESPONDENTS: --------------- 1. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SAJITH LAL, S/O.DASAN, AMBALAPOZHKAYIL HOUSE, ERANJIKKAL P.O., KOZHIKODE. 3. PADMINI, W/O.MOHANDAS, NARULI HOUSE, CHELANNUR P.O., KOZHIKODE. 4. MOHANDAS, CHELANNUR P.O., KOZHIKODE. 5. MONISHA, D/O.MOHANDAS, NARULI HOUSE, CHELANNUR P.O., KOZHIKODE. 6. NIMISHA, D/O.MOHANDAS, NARULI HOUSE, CHELANNUR P.O., KOZHIKODE. R1 BY PUBLIC PROSECUTOR MUHAMMED PUZHAKKARA SRI.P.V.KUNHIKRISHNAN FOR R2-6 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 22/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.R.P.NO.151 OF 2009 ------------------------------------------ Dated 222nd January 2009 O R D E R Revision petitioner is the complainant in C.M.P.1707/2008 on the file of Judicial First Class Magistrate-III, Kozhikode. Complaint was against five accused alleging that they committed offences under Sections 323, 324, 426, 454 and 509 read with Section 34 of Indian Penal Code. Learned Magistrate conducted inquiry under Section 200 of Code of Criminal Procedure and called for a report from the police on investigation as provided under Section 202 of Code of Criminal Procedure. Police filed the report stating that case of the complainant is not correct and as against him another crime is registered for grievous offence. Learned Magistrate after recording the sworn statement of the complainant and the witness dismissed the complaint under Section 203 of Code of Criminal Procedure finding that there is no sufficient material to proceed against the accused. The order is challenged in this revision. 2. Learned counsel appearing for revision CRRP 151/09 2 petitioner was heard. As there was delay, notice was issued to respondents 2 to 6 who appeared through Adv.P.V.Kunhikrishnan. Though at the hearing stage under Section 203 of Code of Criminal Procedure, accused had no right to be heard, learned counsel submitted that learned Magistrate had considered all the materials and passed the order dismissing the complaint finding that there is no sufficient material to proceed against and therefore there is no reason to interfere with the order of dismissal under Section 203 of Code of Criminal Procedure. 4. Learned counsel appearing for revision petitioner relied on the decision of Moosa v. Jomon Puthenpurackal (2005 (4) KLT 685) and argued that the inquiry contemplated under Section 202 of the Code is of a limited nature and only to find out whether or not there is sufficient ground for proceeding against the accused and what was done by the learned Magistrate is appreciating evidence as if it is stage after recording the evidence and therefore the order is not sustainable. 5. On going through the order passed by the learned Magistrate, there is force in the submission of CRRP 151/09 3 the learned counsel appearing for revision petitioner. Learned Magistrate dismissed the complaint for two reasons. Firstly, it was stated that injury sustained by fifth accused is a grievous hurt and due to the attack of the complainant C.C.306/2008 was taken cognizance on the report filed by the police in Crime 213/2008. Second ground was that medical certificate produced by the complainant does not show a grievous hurt. Both the grounds are insufficient to dismiss the complaint on the ground that there are no sufficient materials to proceed with the case. When the wound certificate produced by the complainant corroborates his case with regard to the injury sustained, question whether injury sustained was as stated by CW1 or not is to be decided only after recording the evidence as provided under Section 244 of Code of Criminal Procedure after issuing summons to the accused. Even if, grievous hurt is not disclosed in the wound certificate, it at least shows hurt was caused. In such circumstances, dismissal of the complaint under Section 203 is illegal. Revision is allowed. Order in C.M.P.1707/2008 on the file of Judicial First Class Magistrate-III, CRRP 151/09 4 Kozhikode under Section 203 of Criminal Procedure Code is set aside. The Magistrate is directed to proceed with the complaint in accordance with law and to consider whether there are materials to proceed with the complaint in the light of the sworn statements of Cws.1 and 2 and the materials produced. M.SASIDHARAN NAMBIAR, JUDGE. uj.