IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 14TH OCTOBER 2008 / 22ND ASWINA 1930 Crl.Rev.Pet.No. 3353 of 2008() ------------------------------ (AGAINST THE ORDER DATED 03/05/2008 IN CMP.NO.1563/2008 IN C.C.NO.567/2007 OF JUDL. MAGISTRATE OF FIRST CLASS COURT-III, NEYYATTINKARA) ........................................... REVISION PETITIONERS:PETITIONERS:ACCUSED: --------------------------------------------------------------------------- 1. KRISHNAN ASARI, S/O PARAMESWARAN ASARI, KAMALA BHAVAN, KAMALA BHAVAN, VELLAR, KOVALAM P.O., VENGANOOR VILLAGE, THIRUVANANTHAPURAM. 2. KAMALA KUMARI, W/O KRISHNAN ASARI, KAMALA BHAVAN,VELLAR, KOVALAM P.O., VENGANOOR VILLAGE, THIRUVANANTHAPURAM. BY ADV. SRI.M.P.MADHAVANKUTTY RESPONDENT:RESPONDENT:COMPLAINANT: --------------------------------------------------------------------- SUB INSPECTOR OF POLICE, KOVALAM POLICE STATION, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. P.RAVEENDRA BABU THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 14/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO.3353 OF 2008 =========================== Dated this the 14th day of October,2008 ORDER Petitioners are the accused in C.C.567/2007 on the file of Judicial First Class Magistrate III, Neyyattinkara. Prosecution case is that due to previous enmity with de facto complainant, petitioners who are the husband and wife, on 29.3.2007 at about 9 a.m uttered obscene words and caught hold of the right hand of the de facto complainant and slapped on her chest and also tear off the nighty worn by the de facto complainant and committed offence under section 341,323,354, 294(b) read with section 34 IPC. Learned Magistrate took cognizance of the offences based on the final report submitted by the Sub Inspector of Police, Kovalam after investigation. Petitioners filed C.M.P.1563/2008, for discharge which was dismissed by the learned Magistrate as per order dated 3.5.2008. The order is challenged in this revision CRRP 3353/2008 2 filed under section 397 read with section 401 of Code of Criminal Procedure. 2. Learned counsel appearing for petitioners was heard. 3. The argument of the learned counsel is that there is no material to prove that the incident took place at a public place and therefore Section 294(b)of Indian Penal Code is not attracted. Learned counsel also argued that copy of the decree in O.S.159/2001 on the file of Munsiff Court, Thiruvananthapuram establish that the pathway is not a public pathway but a private pathway and hence the scene of occurrence is not in a public pathway and the de facto complainant has no right to pass through that way and therefore offence under section 341 of Indian Penal code is also not attracted. Learned counsel further argued that ingredients of an offence under section 341 IPC was not brought out and in such circumstance learned Magistrate should have discharged the petitioners. CRRP 3353/2008 3 4. On hearing the learned counsel and going through the order passed by learned Magistrate, I do not find any reason to interfere with the order passed by the learned Magistrate. Though based on the decree in O.S.159/2001 petitioners contended that scene of occurrence is not in a public pathway, as rightly found by the learned Magistrate based on the decree alone, it cannot be prima facie found that the scene of occurrence is the property covered under the decree in O.S.159/2001. Evidence would be necessary to establish that fact. Therefore based on the decree, it is not possible to say that offence under section 294(b) or 341 of IPC is not attracted. Similar is the case with the offence under section 354. These are matters for evidence. Petitioners are entitled to canvass the grounds taken in the petition at the time of evidence. 5. Learned counsel then submitted that petitioners may be granted permanent exemption from appearance before the trial court. I do not find CRRP 3353/2008 4 it proper to grant such permanent exemption in the revision. It is made cleat that learned Magistrate need not insist for the presence of the petitioners on all posting days and if petitioners seek exemption, learned Magistrate has to consider the same. Criminal Revision Petition is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006