IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 26TH SEPTEMBER 2008 / 4TH ASWINA 1930 Crl.Rev.Pet.No. 2861 of 2008() ------------------------------ CC.1086/2008 of JUDL. FIRST CLASS MAGISTRATE, KUNNAMKULAM .................... REVN. PETITIONER(S): REVISION PETITIONERS/ACCUSED NO.2 & 3 -------------------------------------------------------------------------- 1. SASIKALA, W/O. SUKUMARAN, THAYYIL HOUSE, PATTURICKAL VILLAGE, PATTURAICKAL DESOM, THRICHUR CORPORATION. 2. ABISHEK S/O. SUKUMARAN, THAYYIL HOUSE, PATTURAICKAL VILLAGE, PATTURAICKAL DESOM, TRICHUR CORPORATION. BY ADV. SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ RESPONDENT(S): RESPONDENT/COMPLAINANT --------------------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.RAVEENDRA BABU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 26/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.A.8700/2008 IN CRL.R.P.NO.2861/2008 26.9.2008 DISMISSED Sd/- M.Sasidharan Nambiar Judge /true copy/ P.S to Judge M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO.2861 OF 2008 =========================== Dated this the 26th day of September,2008 ORDER Accused 2 and 3 in C.C.1086/2008 on the file of Judicial First Class Magistrate, Kunnamkulam filed this petition under section 397 and 401 of Code of Criminal Procedure challenging the order issuing summons to them along with first accused for the offence under section 406 and 420 read with section 34 of IPC. Second petitioner is the son and first petitioner the wife of the first accused. Sub Inspector of Police submitted the charge after investigation conducted on the order passed by the Magistrate under section 156(3) of the Code of Criminal Procedure. Case of the petitioners is that there is no material to direct petitioners to stand for trial and therefore the order as against petitioners is to be quashed. 2. Learned counsel appearing for petitioners and learned Public Prosecutor were heard. CRRP 2861/2008 2 3. The argument of the learned counsel for petitioners is that the property agreed to be sold belongs to first accused and not to the petitioners and the very prosecution case is that first accused agreed to sell the property to the de facto complainant Parent Teachers Association of the school and received the consideration and did not execute the sale deed and the only allegation as against the petitioners is that they were present at the time when the advance amount was received and learned Magistrate should not have issued summons to the petitioners. 4.Learned Public Prosecutor submitted that allegation in the complaint is that it was in furtherance of the common intention of all the accused inducement to part with the money was made with the intention to cheat, and agreement was executed, induced the de facto complainant to part with money and therefore it is not a case where there is no material to connect petitioners with the offence and therefore the order directing CRRP 2861/2008 3 issuance of summons to all the accused including petitioners is perfectly legal and warrants no interference. 5. The investigation was based on the private complaint filed by de facto complainant, the President of Parent Teachers Association. If the allegations in the complaint stand unrebutted and on that case petitioners cannot be convicted, it is a fit case to interfere with the order issuing summons. On the other hand, if the allegations in the complaint as well as the statements recorded under section 161 of Code of Criminal Procedure disclose a prima facie case, it is not for this court to interfere with the issue of summons. 6. On going through the copy of the complaint and the final report, I do not find that it is a matter to be interfered by this court at this stage. Petitioners are entitled to file an application for discharge and when filed as provided under section 239 of Code of Criminal Procedure learned Magistrate is bound to consider CRRP 2861/2008 4 the question whether case as against petitioners is groundless or not. If it is not groundless, charge is to be framed as provided under section 240.If it is groundless petitioners are to be discharged as provided under section 239. With that liberty the Revision Petition is dismissed. Learned Magistrate is to grant exemption to the petitioners on application till an order is passed as provided under section 239 or 240 of Code of Criminal Procedure as the case may be. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006