IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR FRIDAY, THE 11TH JULY 2008 / 20TH ASHADHA 1930 Crl.Rev.Pet.No. 842 of 2008() ----------------------------- CC.362/2002 of ADDL. CHIEF JUDICIAL MAGISTRATE COURT, TRIVANDRUM .................... REVN. PETITIONER: -------------------------------------- S.LEELABAI,D/O.KAUSALYA, AGED 59 YEARS, RESIDING AT VINEETHA HOUSE, PULIKKAL LANE,KADAVOOR ANAYARA P.O.,THIRUVANANTHAPURAM. BY ADV. SMT.K.KUSUMAM RESPONDENTS: ----------------------------- 1. DR.C.SREEVARDHANAN,NHRA NO.74, V.V.ROAD, PATTOOR THIRUVANANTHAPURAM. 2. JAYACHANDRAN NAIR K., S/O.KESAVA PILLAI, (BLOCK PANCHAYATH MEMBER)KATTIL PUTHEN VEEDU, KADAVOOR, ANAYARA P.O.,THIRUVANANTHAPURAM. 3. SUDARSANAN, S/O.SREEDHARAN,(GRAMA PANCHAYATH MEMBER)MANNANVILAKOM, KADAVOOR, ANAYARA P.O.,THIRUVANANTHAPURAM. 4. GANESAN, S/O.SIVAN CHETTIYAR, POTTUVILAKATHU VEEDU, KADAVOOR, ANAYARA P.O.,THIRUVANANTHAPURAM. 5. SHAJI,S/O.SADANANDAN, PATTUVILKATHU VEEDU,KADAVOOR, ANAYARA P.O.,THIRUVANANTHAPURAM. 2 6. STATE OF KERALA,REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.C.M.NAZAR SRI.D.KISHORE FOR R1 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 11/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = Crl.R.P.No.842 of 2008 = = = = = = = = = = = = = = Dated this the 11 th day of July, 2008 ORDER The revision petitioner who is the complainant in a protest complaint pending as C.C.No.362 of 2008 on the file of the Additional Judicial Magistrate, Thiruvananthapuram, alleging offences punishable under sections 143,147,148,447,448,427 and 453 read with 149 IPC and Sections 25(c) of the Indian Telegraph Act, challenges Annexure 6 order dated 9.05.07 discharging all the five accused under Section 245(1) Cr.P.C. 2. I heard the learned counsel for the revision petitioner as well as the learned counsel appearing for the 1st respondent/ 1st accused. Accused Nos.2 to 5 who are respondents 2 to 6 have chosen to remain ex parte. 3. It is true that there are some contradictions in the averments in the complaint as well as in the evidence of the complainant, who was examined as PW1. In the complaint, the allegation is that at the instigation of the 1st accused, accused Nos.2 to 5 and others threatened to demolish the compound wall Crl.R.P.No.842 of 2008 2 in the night of 16.02.2000 and subsequently on 17.2.2000 at the instigation of the 1st accused, accused Nos.2 to 5 and others trespassed into her property and demolished the compound wall and committed the mischief. The above averments would suggest that the 1st accused was not physically present among those who threatened the complainant in the night of 16.2.2000 and among those who demolished the compound wall on 17.2.2000. During the stage of evidence under Section 244 Cr.P.C, the complainant however deposed that all the 5 accused persons came to her residence in the night of 16.2.2000 and all the 5 accused persons trespassed into her property on 17.2.2000 and they along with 20 others demolished the compound wall. She also deposed that after the demolition of the compound wall the 1st accused came to the property and made a remark that the demolition was far more than what was directed. But it is too early to jump to the conclusion regarding the falsity or otherwise of the case of the complainant. The other witnesses mentioned in the witness schedule filed by the complainant were not examined under Section 244 Cr.P.C and the complainant has a grievance that they were not examined even though she requested the Crl.R.P.No.842 of 2008 3 Magistrate to examine them. The complainant has not been subjected to cross examination. With regard to A2 to A5 there was no such contradiction also. The learned Magistrate acted illegally in discharging all the accused under Section 254(1) Cr.P.C. This is a case which should have gone for trial. Accordingly, the impugned order is set aside and C.C.No.362/2000 shall stand restored to file and shall be proceeded with in accordance with law. The revision petitioner and the 1st respondent shall appear before the learned Magistrate without any further notice on 30.07.08. It is needless to mention that fresh process will have to be issued to accused Nos.2 to 5 to secure their presence before the court below. Dated this the 11 th day of July, 2008. V. RAMKUMAR, JUDGE sj