IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 27TH NOVEMBER 2008 / 6TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 3433 of 2008() ------------------------------ CMP.7824/2008 IN C.C.51/2008 of JUDL. MAGISTRATE OF FIRST CLASS COURT, WADAKKANCHERY .................... REVN. PETITIONER(S): PETITIONER/2ND ACCUSED -------------------------------------------------------- THULASEEDHARAN, S/O.RAMACHANDRAN, 34 YEARS, KUREEPALI HOUSE, THALASSERY VILLAGE, AND POST THAPPILLY TALUK, THRISSUR. BY ADV. SMT.T.D.RAJALAKSHMI SRI.R.SREEHARI RESPONDENT(S): RESPONDENT/COMPLAINANT ----------------------------------------------------- STATE OF KERALA, REP. BY THE SUB INSPECTOR OF POLICE, CHERUTHURUTHY POLICE STATION THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI.C.M.KAMAPPU THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 27/11/2008 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO. 3433 OF 2008 =========================== Dated this the 27th day of November,2008 ORDER Revision petitioner is the second accused in C.C.No.51/2008 on the file of Judicial First Class Magistrate Court, Wadakkanchery. Sub Inspector of Police, Cheruthuruthy Police Station submitted charge sheet after investigation under section 173 (2) of Code of Criminal Procedure against the four accused. It was taken cognizance by the Magistrate for the offences under sections 467,468 and 484 read with section 34 of Indian Penal Code. Prosecution case is that with the assistance of accused 2 to 4, first accused forged the seal of Desamangalam Village Officer and forged a certificate printed at the press of the third accused with the assistance of fourth accused and first accused was assisted by the second accused in contacting third accused and all the accused committed offences under sections 467,468 and 484 CRRP 3433/2008 2 read with section 34 IPC. Petitioner filed Crl.M.C. 2863/2008 before this court under section 482 of Code of Criminal Procedure to quash the order of the Magistrate taking cognizance of the offence as against him. As per order dated 29.7.2008 Crl.M.C was dismissed observing that petitioner is entitled to file an application for discharge under section 239 of Code of Criminal Procedure and if such a petition is filed, Magistrate has to consider the same and pass appropriate order. Revision petitioner thereafter filed CMP 7824/2008 under section 239 of Code of Criminal Procedure contending that there is no material whatsoever to connect revision petitioner with the offences alleged and therefore he is entitled to be discharged under section 239 of Code of Criminal Procedure. Learned Magistrate as per order dated 16.9.2008, dismissed the application holding that it is premature at this stage to arrive a conclusion that there is no satisfactory CRRP 3433/2008 3 evidence to connect revision petitioner with the offence. The order is challenged in this revision. 2. Learned counsel appearing for the revision petitioner and the learned Public Prosecutor were heard. 3. Records were called for from the learned Magistrate and the entire CD file was made available by the learned Public Prosecutor. 4. The argument of the learned counsel is that there is absolutely no material to connect revision petitioner with any of the offences alleged. It was argued that the only allegations against revision petitioner is that he assisted first accused to get the seal prepared from the Press of the third accused and none of the witnesses whose statements were recorded under section 161 of Code of Criminal Procedure has a case that revision petitioner is in any way connected with the offences. Learned counsel argued that if at all, the only material against CRRP 3433/2008 4 revision petitioner is the alleged confession statement of accused 1 and 3 and based on that confession no charge can be framed as it cannot be used against revision petitioner and therefore learned Magistrate was not justified in not discharging the revision petitioner. 5. Learned Public Prosecutor fairly submitted that in none of the statements of the witnesses recorded under section 161 of Code of Criminal Procedure there is any statement to connect revision petitioner with the offences. It was pointed out that when accused 1 and 3 were questioned and their statement were recorded by the Investigating Officer, it was revealed that revision petitioner assisted first accused to procure the forged certificate and therefore learned Magistrate was justified in not discharging the revision petitioner. 6. Section 239 of Code of Criminal Procedure provides that on considering the Police report, the CRRP 3433/2008 5 documents sent along with it and making such examination if any of the accused, the Magistrate considers the charge against the accused to be groundless, he shall be discharged after recording the reasons. Under section 240 a Magistrate can frame the charge upon such consideration, if the Magistrate is of opinion that there is ground for presuming that accused has committed the offence. The question is whether there is any material either in the documents or the statements recorded under section 161 of Code of Criminal Procedure to connect the revision petitioner with the offences alleged. The case of the prosecution against revision petitioner is that when first accused wanted to forge a seal of the Village Officer, he contacted revision petitioner and revision petitioner arranged the seal to be made through the Press of the third accused with the assistance of the fourth accused. But based on the confession statements of the accused, which cannot be used as CRRP 3433/2008 6 against the co-accused, it is not possible to hold that there is material to proceed against the revision petitioner. When it is not disputed that in none of the statements recorded under section 161 of Code of Criminal Procedure, there is no mention of the revision petitioner so as to connect him with the offence and there is also no documentary evidence, learned Magistrate was not justified in holding that at this stage it is not possible to discharge the accused. Even if the materials produced by the prosecution to establish the offences charged is accepted, it is insufficient to direct revision petitioner to stand trial for any of the offences alleged. The case as against revision petitioner is groundless. The order passed by the Magistrate is illegal and can only be set aside. I do so. Revision is allowed. The order passed by the Judicial First Class Magistrate, Wadakkanchery in CMP No.7824/2008 in C.C.51/2008 is set aside. CRRP 3433/2008 7 Revision petitioner the second accused, is discharged under section 239 of Code of Criminal Procedure. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006