IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 14TH JUNE 2010 / 24TH JYAISTHA 1932 Crl.Rev.Pet.No. 1502 of 2010() ------------------------------ AGAINST THE ORDER DATED 01/03/2010 IN CRMP.1098/2010 IN CC.115/2006 of JUDL. MAGISTRATE OF FIRST CLASS, VAIKOM .................... REVN. PETITIONER(S): ACCUSED NO.3 -------------------------------------------------------- LEELA KANAKAMBARAN, VEENA NIVAS, BRAHMAMANGALAM KARA, CHEMBU VILLAGE, KOTTAYAM DISTRICT. BY ADV. SRI.C.P.SAJI RESPONDENT(S): COMPLAINANT & STATE --------------------------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV.SMT.M.K.PUSHPALATHA, PUBLIC PROSECUTOR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 14/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ami/ V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.1502 of 2010 ------------------------------- Dated this the 14th day of June, 2010. O R D E R The 3rd accused in C.C.No.115/06 in the Court of Judicial First Class Magistrate-I, Vaikkom, is the revision petitioner as she is aggrieved by the order dated 1.3.2010 in Crl.M.P.No.1098/10 in the above case. 2. Initially the accused were charge sheeted u/s.420 of IPC and during the trial, out of 63 witnesses cited, 24 witnesses were examined and thereafter the prosecution filed an application u/s.216 of Cr.P.C. for adding an offence u/s.409 of IPC against all the accused. The said petition was allowed and when the case stood posted for recording the plea of the 3rd accused to the added charge, the 3rd accused herein preferred Crl.M.P.1098/10, with a plea of discharge on the ground that the prosecution records as well as the evidence already adduced through the 24 witnesses are not sufficient to inculpate the accused for an offence u/s.409 and 420 of IPC. 3. The learned Magistrate observed that, any discussion Crl. R.P.No.1502 of 2010 2 shall be superfluous and there is no scope for any discharge after framing the charge. However, the order is not specific as to whether the charge has already been framed simply upon the request of the prosecution and whether the accused were heard, before framing of the charge. If the charge under the added offence has already framed, the learned Magistrate is absolutely correct in holding that, 'no scope for any discharge after framing the charge'. As there is no datas as to, whether the accused were heard, before the framing of the charge, based upon the petition from the side of the prosecution to add S.409 of IPC. 4. In the light of the above facts and circumstances, I am of the view that this revision petition can be disposed of, with a direction to the court below to hear the accused including the revision petitioner, before framing the charge u/s.409 of IPC. While considering the question of framing the charge u/s.409 of IPC against the accused, the learned Magistrate need not pass any separate detail order but he has to only ensure, that the accused are heard before framing such charge and thereafter to Crl. R.P.No.1502 of 2010 3 record the plea of the accused. In the result, this revision petition is disposed of directing the Judicial First Class Magistrate Court-I, Vaikkom, to consider the question of framing the charge against the accused u/s.409 of IPC after hearing the accused and the prosecution and thereafter if the result of such proceedings positive, he can frame the charge u/s.409 of IPC against the accused and to record the plea of the accused. With the above direction, this criminal revision petition is disposed of. V.K.MOHANAN, Judge. ami/