IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 19TH JUNE 2008 / 29TH JYAISHTA 1930 Crl.Rev.Pet.No. 1999 of 2008() ------------------------------ AGAINST THE ORDER DATED 12/07/2007 IN CMP.152/2007 IN SC.2414/2004 of ASSISTANT SESSIONS COURT, NEYYATTINKARA .................... REVN. PETITIONER: 1ST ACCUSED IN THE COURT BELOW: ------------------------------------------------------------------ B.SURENDRA DAS, S/O.BHANU PANICKER, SREE VISAKH, TC 16/39, VANDITHADAM, THIRUVANANTHAPURAM. BY ADV. SRI.K.B.PRADEEP RESPONDENTS: COUNTER-PETITIONER/COMPLAINANT IN THE COURT BELOW: --------------------------------------------------------------- THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI. P. RAVINDRA BABU, PUBLIC PROSECUTOR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 19/06/2008,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR , J. ========================== Crl.R.P. No. 1999 of 2008 ========================== Dated this the 19th day of June, 2008. ORDER The petitioner, who is the 1st accused in crime No. 44 of 2002 of Vizhinjam police station for offences punishable under Sections 55(a), 57(a), 58, 64 and 8(1)r/w Section 8(2) of the Abkari Act, challenges the order dated 12.07.2007 passed by the Assistant Sessions Judge, Neyyattinkara postponing the consideration of C.M.P. No. 152 of 2007 filed by the petitioner seeking his discharge. On an earlier occasion, the petitioner along with his wife who were accused Nos. 1 and 6 in the case, sought to quash the committal proceedings by filing Crl. M.C. No. 2280 of 2004 before this Court. As per Annexure I order dated 16.08.2006, this Court quashed the proceedings as against the 6th accused who is the wife of the petitioner. But with regard to the petitioner, he was given an opportunity to canvass for a discharge. After the committal of the case to the Assistant Sessions Court, the petitioner filed the above petition namely C.M.P. No. 152 of 2007 seeking discharge. The consideration of CRL.R.P. NO. 1999/2008 : 2: that petition has been postponed by the Assistant Sessions Judge by passing the following order. “After hearing both sides, I am of the view that the contentions raised by the petitioner can be considered after taking evidence. Hence the petition will be considered after evidence is adduced.” 2. The learned Assistant Sessions Judge has evidently misunderstood the scope of a trial before a Court of Session. After considering the record of the case and the documents submitted by the prosecution and after hearing the prosecution as well as the accused, power does exist in the Sessions Court to consider whether there is sufficient ground for proceeding against the accused and if he or she is of the opinion that there is no sufficient ground for proceeding against the accused, the accused will have to be discharged under Section 227 Cr.P.C. This power is to be exercised at the threshold even before the framing of the charge. If after hearing both sides and perusing the documents produced in support of the prosecution the Sessions Judge is of opinion that there is sufficient ground for proceeding, then only can the Sessions Judge frame charge CRL.R.P. NO. 1999/2008 : 3: under Section 228 Cr.P.C. Hence, the learned Assistant Sessions Judge was bound to consider C.M.P. No. 152 of 2007 and examine whether there was prima facie case for trial of the petitioner herein. The impugned order is accordingly set aside and C.M.P. No. 152 of 2007 shall stand restored to file for fresh consideration and passing an order in accordance with law. This Crl.R.P. is disposed of as above. Dated this the 19th day of June, 2008. V. RAMKUMAR, JUDGE. rv CRL.R.P. NO. 1999/2008 : 4: