IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 26TH NOVEMBER 2008 / 5TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 3562 of 2008() ------------------------------ CRRP.8/2007 of ADDL. SESSIONS COURT-II, MAVELIKKARA CMP.7145/2005 of JUDL.MAGISTRATE OF FIRST CLASS, MAVELIKKARA .................... REVN. PETITIONER(S): IST RESPONDENT/ACCUSED --------------------------------------------------------- SAMUEL GEORGE, KIZHAKKETTATHU, THANNIKUNNEL, VETTIYAR, MAVELIKARA. BY ADV. SRI.JAGADEESH LAKSHMAN RESPONDENT(S): REVISION PETITIONER/COMPLAINANT AND STATE ---------------------------------------------------------------------------- 1. PONNAMMA, MAMPALLIPPURATHU, MUDIYOORKONAM.P.O, PANDALAM. 2. STATE OF KERALA-REPRESENTED BY DISTRICT COLLECTOR THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.SRI.C.M. NAZAR FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 26/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO.3562 OF 2008 =========================== Dated this the 26th day of November,2008 ORDER Revision petitioner is challenging the order passed by the Additional Sessions Judge-II, Mavelikara in Crl.R.P.8/2007 whereunder learned Sessions Judge set aside the order passed by the Judicial First Class Magistrate, Mavelikara in C.M.P.No.7145/2005, dismissing the complaint filed by first respondent under section 203 of Code of Criminal Procedure and directed the Magistrate to proceed under section 204 of Code of Criminal Procedure. 2. Learned counsel appearing for the revision petitioner was heard. 3. The argument of the learned counsel is that learned Sessions Judge illegally set aside the order passed under section 203 of Code of Criminal Procedure by the learned Magistrate, when as found by the learned Magistrate the sworn statement of CRRP3562/2008 2 CW1 and CW2 are contradictory and conflicting with the allegations raised in the complaint. In such circumstance, it was argued that learned Sessions Judge should not have interfered with the order when Magistrate has exercised the discretion legally and in proper manner. Reliance was placed on the decisions of this court in Kader v. State of Kerala (1999 (3) KLT 262)and Hameed v. Sugathan (1981 KLT 235). 4. Section 203 of Code of Criminal Procedure provides for dismissal of a complaint after considering the statements on oath (if any) of the complainant and of the witnesses (if any)and the result of the inquiry or investigation (if any) under section 202 if the Magistrate is of opinion that there is no sufficient ground for proceeding with the complaint. In that event Magistrate is bound to record his reasons for so doing. On the other hand, if after considering the materials, Magistrate is of the opinion that there is CRRP3562/2008 3 sufficient ground for proceeding further, he must proceed as provided under section 204 of Code of Criminal Procedure. 5. The case of the first respondent in her complaint was that on 19.4.2005 at about 12.30 p.m while she was walking along the side of Mavelikara-Pallarimangalam road at court junction, petitioner restrained her and abused her saying that she is a prostitute and slapped on her left cheek with his right arm and caught hold of her saree together with her breast causing mental agony and he thereby committed the offence under sections 354, 341, 323,294(b) and 509 IPC. Learned Magistrate originally forwarded the complaint under section 156(3) of Code of Criminal Procedure for investigation and Police after investigation submitted a refer report. It is thereafter first respondent filed the complaint which was taken cognizance by the learned Magistrate as CMP 7145/2005. As provided under section 200 of Code of Criminal Procedure, Magistrate recorded the CRRP3562/2008 4 statement of first respondent complainant as CW1 and the statement of CW2. Based on the statements and the complaint, learned Magistrate dismissed the complaint under section 203 of Code of Criminal Procedure, accepting the refer report submitted by the police. The reasons stated by the learned Magistrate to dismiss the complaint are that in the complaint, what was stated by first respondent was that her breast was caught hold of along with the saree and when her sworn statement was recorded she had no case that revision petitioner caught hold of her breast along with the saree and therefore the case cannot be believed. Learned Magistrate disbelieved the case on this flimsy ground. As rightly found by learned Sessions Judge, at this stage of inquiry under section 200 of Code of Criminal Procedure, what is to be decided by the Magistrate is whether there is sufficient ground to proceed against the accused. For that purpose the sworn statement of the complainant and the witnesses together with the complaint is to be CRRP3562/2008 5 appreciated. Even if a material fact was omitted to be mentioned by the complainant at the time of recording the sworn statement, it should not have been given undue importance. Question is if what is stated by CW1 and 2 along with the allegations in the complaint are accepted a prima facie case is made out. If made out Magistrate is bound to proceed under section 204 of Code of Criminal Procedure and only if there is no sufficient ground to proceed, the accused is to be discharged under section 203. Learned Sessions Judge rightly set aside the order passed by the Magistrate and directed the Magistrate to proceed with the complaint after issuing process under section 204 of Code of Criminal Procedure. Criminal Revision Petition is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006