IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 22ND FEBRUARY 2011 / 3RD PHALGUNA 1932 Crl.Rev.Pet.No. 547 of 2011() ----------------------------- (CC.472/2009 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, THRISSUR) .................... REVN. PETITIONER/ACCUSED ------------------------------------------- JOHNSON, S/O.LONAPPAN, PALLISSERY HOUSE, PARAPPUKARA, THRISSUR. BY ADV. SRI.DINESH MATHEW J.MURICKEN RESPONDENTS/COMPLAINANT -------------------------------------------- STATE OF KERALA, THROUGH THE S.I. OF POLICE, CHERPU, PIN 680561, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR, SRI.V.TEK CHAND THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 22/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: VK V.K.MOHANAN,J. ---------------------------------------------------------- Crl.R.P.No. 547 of 2011 --------------------------------------------------------- Dated this the 22nd day of February,2011 O R D E R The accused in C.C.No.472 of 2009 on the file of the court of the Judicial First Class Magistrate Court-I, Thrissur is the accused. His grievance is that though he had approached the said court with a prayer for discharge from the above case, the learned Magistrate rejected his prayer, holding that there is a prima facie case to frame charge under Section 7(1)(ii) of the Essential Commodities Act read with clause 6(2) of the Kerala Land Utilization Order, 1967. 2. Heard the learned counsel for the revision petitioner as well as the learned Public Prosecutor. 3. Learned counsel invited my attention to paragraph 2 of the impugned order and submitted that in the report, the only allegation is that the petitioner has converted the character of land, by removing soil from the paddy field and according to the learned counsel, in the absence of any material or evidence to the effect that the land in question was Crl.R.PNO.547 of 2011 :-2-: used for cultivation at least for three years after the commencement of the Kerala Land Utilization Order, no offence will be attracted and the learned Magistrate miserably failed to consider the above vital point. 4. On the other hand, the learned Public Prosecutor submitted that CW10, the concerned Village Officer in his statement, stated that the land was using for paddy cultivation. Therefore, according to the learned Public Prosecutor, the order of the learned Magistrate is legally and factually sustainable. 5. I have carefully considered the arguments advanced by both the counsel for the petitioner as well as the learned Public Prosecutor. 6. On a reading of paragraph 2 of the impugned order, absolutely there is no reference to the effect that the land in question was used for cultivation in terms of Rule 6(2) of the Kerala Land Utilization Order. But it is beyond dispute that CW10 has stated that the land in question was used for Crl.R.PNO.547 of 2011 :-3-: cultivation. If that be so, the same should have been referred to by the learned Magistrate in the impugned order. From the words used in the impugned order, it is discernible that the character of the land has been converted, but according to me, that is not sufficient so as to attract the ingredients of Section 6(2) of the Kerala Land Utilization Order unless the Magistrate is of the opinion that the land in question was being used for cultivation. But, there is no reference to such aspects. Therefore, according to me, it is only just and proper to set aside the impugned order and to remit the matter back for fresh consideration. In the result, this Criminal Revision Petition is disposed of setting aside the order dated 22.12.2010 in C.C.No.472 of 2009 of the Court of the Judicial First Class Magistrate-I, Thrissur and the matter is remitted back to the same court for considering the matter afresh, after hearing the revision petitioner as well as the prosecution, having regard to the facts and circumstances involved in the case, especially in Crl.R.PNO.547 of 2011 :-4-: terms of Section 6(2) of the Kerala Land Utilization Order. As the crime pertains to the year 2007, the learned Magistrate is directed to pass appropriate orders as expeditiously as possible at any rate within three months from today and the revision petitioner is directed to produce a copy of this order to the learned Magistrate without delay. V.K.MOHANAN, Judge. MBS/ Crl.R.PNO.547 of 2011 :-5-: