IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 30TH JULY 2009 / 8TH SRAVANA 1931 Crl.Rev.Pet.No. 2427 of 2009() ------------------------------ AGAINST THE ORDER IN CMP 4731/2008 IN CC.100/2007 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, KANNUR .................... REVN. PETITIONER(S): ACCUSED NOS.3 & 4 -------------------------------------- 1. T.K.VIJAYARAJAN @ VIJAYARAJARSHI, AROGYANIGATHAN, P.B.NO.25, PATHANAMTHITTA DISTRICT (RESIDING AT KURIKATTIL KIZHAKKETHIL, IRAVAN VILLAGE, PATHANAMTHITTA) 2. VIMALRAJ SOORYAVARMA, S/O.VIJAYARAJAN, KURIKATTIL KIZHAKKETHIL HOUSE, IRAVAN VILLAGE, PATHANAMTHITTA. (PETITIONERS ADDRESS SHOWN IN THE LOWER COURT ORDER IS REGIONAL EDUCATION CENTRE, MALIPRA,PATHANAMTHITTA.NOW THEY ARE RESIDING IN THE ADDRESS SHOWN ABOVE) BY ADV. SRI.M.T.SURESHKUMAR SRI.V.V.RAJA RESPONDENT(S): STATE/COMPLAINANT -------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SHRI C.S.HRITHWIK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 30/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.2427 of 2009 -------------------------------------- Dated this the 30th day of July, 2009. ORDER Public Prosecutor takes notice for respondent. Heard both sides. 2. Petitioners along with others are charge sheeted for offences punishable under Sections 468, 472 and 420 read with Section 34 of the Indian Penal Code. Case against petitioners is that they conducted educational institutions making students believe that they have recognition from Anna Technology University while infact they had no such recognition and that inducing the students to believe that after the course is over they will be issued certificates, obtained money from them but did not issue such certificates. Petitioners pleaded for a discharge under Section 239 of the Code of Criminal Procedure (for short, “the Code”). Learned magistrate vide the impugned order dismissed the prayer. It is contended by learned counsel that the dismissal of C.M.P.No.4731 of 2008 is not justified. 3. On going through the order under challenge I find that learned magistrate accepted the arguments advanced by the learned Assistant Public Prosecutor that whether there is sufficient materials/ground is a matter of appreciation of evidence which can only be done in a full-fledged trial. When acting under Section 239 of the Code learned magistrate should form an opinion after consideration of the materials referred to in that Section whether the Crl.R.P.No.2427/2009 2 charge against the petitioners is groundless or not. Charge can be framed only when such consideration the magistrate finds that there is ground to presume that petitioners have committed the offence alleged. No such satisfaction has been entered by the learned magistrate as seen from the impugned order. The order under challenge therefore cannot stand. Learned magistrate shall consider the materials referred to in Section 239 of the Code,satisfy himself whether there is sufficient ground to proceed against the petitioners and pass appropriate orders. Resultantly, this revision petition is allowed. Order under challenge is set aside and C.M.P.No.4731 of 2008 is remitted to the court below for fresh consideration in the light of the observations made above and the provisions of Sections 239 and 240 of the Code. THOMAS P.JOSEPH, Judge. cks