IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 2ND AUGUST 2011 / 11TH SRAVANA 1933 Crl.Rev.Pet.No. 1879 of 2011() ------------------------------ C.M.P.NO.2765/2011 IN CC.462/2010 of CHIEF JUDICIAL MAGISTRATE COURT, KOZHIKODE .................... REVN. PETITIONER(S)/(PETITIONER/5TH ACCUSED): --------------------------------------------- B.UMESH RAO, S/O. NARAYANA RAO, 73/2010, BEACH ROAD, KASARAGOD, KASABA VILLAGE. BY ADV. SRI.T.SETHUMADHAVAN SRI.PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR SMT.VANDANA MENON SMT.ANJU P.NAIR RESPONDENT(S)/(STATE & COMPLAINANT): ------------------------------------ 1. STATE OF KERALA, REPRESENTED BY THE DIRECTOR OF PUBLIC PROSECUTIONS, HIGH COURT OF KERALA, ERNAKULAM. 682 031 2. K.HASSAINAR, AGED ABOUT 55 YEARS, S/O. LATE ABBAS, BAMBRANI NAGAR, MUTTATHODY VILLAGE, CHENGALA POST, KASARAGOD TALUK. 673 001 PUBLIC PROSECUTOR SRI.SABU SREEDHARAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 02/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ------------------------------- Crl.R.P.NO.1879 OF 2011 ----------------------------------- Dated this the 2nd day of August, 2011 O R D E R The fifth accused in Crime No.1007/2008 of Kasaragod Police station, in which a final report has been filed before the Chief Judicial Magistrate Court, Kasaragod indicting the accused therein for offences punishable under Sections 120(B), 420, 468 and 471 read with Section 34 of the Indian Penal Code, has filed this revision. The legality, propriety and correctness of the order passed in his application C.M.P.No.2765 of 2011 for his discharge, which had been turned down by the learned Magistrate by order dated 23.5.2011 is challenged in the revision. 2. The aforesaid application of the fifth accused was considered with another application C.M.P.No.2764 of 2011 Crl.R.P.NO.1879/2011 2 moved by the 3rd accused. While the application of the 3rd accused was allowed, the application of the present petitioner (A5) was turned down. The case arose on reference of a private complaint filed by the de facto complainant before the court for investigation and report under Section 156 (3) of the Cr.P.C. In such compliant, no imputation had been levelled against the petitioner (A5) and, in fact, he was also not named as an accused, is the submission of the counsel. Cheating in execution of a sale deed, in which, he had discharged duties as a document writer, is the basis for roping him also as an accused by the investigation agency though no imputation against him had been made even by the de facto complainant, is the further submission of the counsel. The learned Magistrate had made some observations under the impugned order while dismissing his application, and if that is allowed to stand, it would cause prejudice to him in the trial is the apprehension expressed by the counsel apart from challenging the legality and propriety of the order. But going through the order passed by the learned Magistrate, other than stating that a prima facie case is made Crl.R.P.NO.1879/2011 3 out against A5, nothing more has been stated by the Magistrate to generate any apprehension in the mind of the 5th accused that the observations in the order would prejudice him in trial. Whatever be the nature of the observations, needless to point out, the case has to be decided on its merits with reference to the materials tendered by the prosecution, and more particularly, with reference to the question whether the offence has been made out on such materials. Having regard to the fact that the trial in the present case involves offences which provide punishment of more than two years is the plea of discharge canvassed by the accused can be looked into only within the narrow limits covered by Section 239 of the Cr.P.C. When that be so, where on the materials the learned Magistrate found reason to presume the guilt of the accused, the plea of discharge cannot be entertained. Whatever be the finding made by the learned Magistrate at this stage, it is not based on evidence, but only a prima facie view on the materials tendered to consider whether further steps on the basis of the report laid by the police is called for. That alone has been done by turning down the plea Crl.R.P.NO.1879/2011 4 of discharge of the accused. I do not find any impropriety or illegality in the order passed by the learned Magistrate. Revision fails, and it is dismissed. S.S.SATHEESACHANDRAN JUDGE prp Crl.R.P.NO.1879/2011 5