IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 7TH AUGUST 2009 / 16TH SRAVANA 1931 Crl.Rev.Pet.No. 2563 of 2009() ------------------------------ CC.197/2000 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOTTARAKKARA .................... REVN. PETITIONER(S)/ACCUSED NUMBERS 2 TO 4 --------------------------------------------------------------- 1. THANKAPPAN, S/O.NARAYANAN, VALIYA PANAYIL VEEDU, ODANAVATTOM MURI AND VILLAGE, KOTTARAKKARA. 2. SURESH BABU, VALIYA PANAYIL VEEDU, ODANAVATTOM MURI AND VILLAGE, KOTTARAKKARA. 3. BINDHU, D/O.MEENAKSHI, VALIYA PANAYIL VEEDU, ODANAVATTOM MURI AND VILLAGE, KOTTARAKKARA. BY ADV. SRI.JOHNSON GOMEZ RESPONDENT(S): RESPONDENTS/ STATE AND COMPLAINANT ------------------------------- 1. THE STATE OF KERALA REPRESENTED THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM THROUGH THE SUB INSPECTOR OF POLICE, POOYAPPALLY POLICE STATION, KOLLAM. 2. GOPALAKRISHNAN, S/O.LATE SRI.KUTTAPPAN, GOKULATHIL, ULIYACOVIL CHERRY, KOLLAM EAST VILLAGE. PUBLIC PROSECUTOR SHRI C.S.HRITHWIK FOR R1 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 07/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.2563 of 2009 -------------------------------------- Dated this the 7th day of August, 2009. ORDER This revision is in challenge of Annexure-A5, order dated 20.1.2009 in C.C.No.197 of 2000. As per impugned order learned magistrate decided to frame charge against the petitioners for offences punishable under Sections 379, 506(ii), 447 and 427 of the Indian Penal Code (for short, “the IPC”). 2. Case of respondent No.2 is that petitioners along with deceased accused No.1 trespassed into his property, cut down rubber plant, removed the same and criminally intimidated respondent No.2. It would appear that originally the case was investigated by the police and refer report was filed. Sworn statement of witnesses and himself were recorded. Learned magistrate dismissed the complaint. That order was challenged by respondent No.2 in revision before the learned Sessions Judge. As per Annexure-A3, order dismissal of the complaint was set aside and learned magistrate was directed to reconsider the issue afresh in view of the observations made in the order. That order was challenged by petitioners in this Court in Crl.M.C.No.3387 of 2008. This Court accepted the contention of the petitioners that learned Additional Assistant Sessions Judge was under the impression that the order impugned was an order of dismissal under Section 203 of the Code of Criminal Procedure Crl.R.P.No.2563/2009 2 (for short, “the Code”) while actually it was an order of discharge of the petitioners under Section 245(2) of that Code but at the same time directed learned magistrate to reconsider the issue whether petitioners are entitled to be discharged under Section 245 (1) or (2) of the Code. In the light of that direction learned magistrate again considered the issue and decided to frame charges against the petitioners as aforesaid. According to learned counsel there was no sufficient material to frame charge against the petitioners. Learned counsel contended that apart from producing a sale deed executed by a third party allegedly in respect of the disputed property no material is produced to show that respondent No.2 is in possession of the property. It is also contended by the learned counsel that there was no possibility of petitioners committing offences as alleged since deceased accused No.1 is a lady and was aged 79 years at the relevant time. She could not have been involved in the alleged incident as claimed by respondent No.2. Petitioner No.3/accused No.4 is a married girl residing far away from the disputed property. Hence there is no possibility of her also getting involved. In the complaint it is alleged that petitioners and deceased accused No.1 trespassed into the property of respondent No.2 and committed offences as alleged. It is specifically averred that petitioners and deceased accused No.1 cut down rubber trees and removed the same. In the evidence respondent No.2 also stated so. His witnesses have also stated to the incident. The acceptability of that evidence is not required to be considered at this stage. What is required to be considered is only the evidence on record if unrebutted would warrant a conviction. On going through Crl.R.P.No.2563/2009 3 the order under challenge I am unable to accept that contention of the learned counsel that there is no sufficient material on which learned magistrate could have formed the satisfaction that evidence if unrebutted would warrant a conviction. As such no interference is called for with reference to the order under challenge. 3. Learned counsel requested that petitioner No.3/accused No.4 is residing along with her husband and that she may be exempted from personal appearance in the court below. I make it clear that so far as identification of the petitioners is not under challenge and is not required to be established through the witnesses in the court, it will be open to the petitioners to make appropriate request in the court below for exemption from personal appearance and if any such request is made learned magistrate will consider that request considering the facts and circumstances of the case and pass appropriate orders thereon. With the above observation this revision petition is dismissed. THOMAS P.JOSEPH, Judge. cks