IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 5TH FEBRUARY 2009 / 16TH MAGHA 1930 Crl.Rev.Pet.No. 297 of 2009() ----------------------------- CMP. 2802/2008 IN CC.192/2006 of CHIEF JUDICIAL MAGISTRATE COURT, THIRUVANANTHAPURAM. .................... REVN. PETITIONERS/APPELLANTS/ACCUSED: --------------------- 1. THURAIYAMMA JAYAKUMAR, D/O. MAHESWARY, SIVAPERUNNAN ROAD 3RD STREET, NO.5/856, VANNAR VANNAI DESOM, THACHIMAR COIL, JAFNA, SREELANKA. 2. JAYAKUMAR JAYA GAURI, D/O. THURAIYAMMA JAYAKUMAR, SIVAPERUNNAN ROAD 3RD STREET, NO. 5/856, VANNAR VANNAI DESOM, THACHIMAR COIL, JAFNA, SREELANKA. BY ADV. MS.MAJIDA.S MR.K.RAJESH KANNAN MR.AJIKHAN.M MR.A.S.SHAMMY RAJ RESPONDENT/COUNTER PETITIONER/COMPLAINANT: -------------------- THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. PUBLIC PROSECUTOR MR. MUHAMMED PUZHAKKARA THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 05/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRRP 297/2009 ORDER ON C.MA.888 OF 2009 IN CRL.R.P. 297 OF 2009 DISMISSED. SD/- M. SASIDHARAN NAMBIAR, JUDGE 5.2.2009 OKB - TRUE COPY - P.A. TO JUDGE M. SASIDHARAN NAMBIAR,J. ------------------------------------------------- CRL.R.P.No. 297 OF 2009 -------------------------------------------------- Dated this the 5th day of February, 2009 O R D E R Revision petitioners are the accused in C.C. 192 of 2006 on the file of Chief Judicial Magistrate, Thiruvananthapuram. They are challenging the order passed by Chief Judicial Magistrate dated 1.1.2009 dismissing CMP.2802 of 2008 filed by them for discharge under section 239 of Code of Criminal Procedure. 2. Learned counsel appearing for revision petitioners and learned Public Prosecutor were heard. 3. Learned counsel appearing for revision petitioners argued that as per the charge sheet submitted by the police, there was no allegation as against the second revision petitioner/second accused and the only allegation is against first revision petitioner/first accused and therefore the learned Magistrate should have discharged the second revision petitioner and this aspect was not considered by the learned Magistrate at all. Learned counsel also pointed out that to CRRP 297/2009 2 attract an offence under section 3 read with section 12(1A)(b) of Passport Act, there should be an allegation that a travel document as defined under section 4(2) of the Passport Act was forged and the document, which was allegedly forged by the revision petitioners as per prosecution case, is the exit permit and the letter obtained from District Collector, Thiruvannamalai which are not documents as provided under section 4(2) of the Passport Act and therefore an offence under section 3 read with section 12(1A)(b) of the Passport Act is not attracted at all and this was also not considered by the learned Magistrate. Learned counsel then argued that neither the offence under section 465 or 468 of Indian Penal Code is attracted in the absence of a case that revision petitioners forged the documents and that too for the purpose of cheating and in such circumstances revision petitioners should have been discharged for the offence under section 465 and 468 of Indian Penal Code. 4. Learned Public Prosecutor submitted that all the materials were produced before the learned Magistrate and in the light of the materials there is prima facie case for framing charge and therefore dismissal of the application for discharge is perfectly legal. CRRP 297/2009 3 5. On going through the order passed by Chief Judicial Magistrate, it is absolutely clear that learned Chief Judicial Magistrate has not considered the application in the proper perspective. The question is whether from the materials produced along with the final report filed under section 173(2) of Code of Criminal Procedure, including the statements recorded under section 161 of Code of Criminal Procedure, prosecution has prima facie shown that revision petitioners committed the offences under section 465, 468 and 471 read with section 34 of Indian Penal Code as well as section 3 read with section 12(1A) b) of Passport Act. Though learned Magistrate was justified in stating that evidence is not to be weighed at this stage, definitely the materials produced by the prosecution are to be looked into by the Chief Judicial Magistrate to find out whether there are materials to prima facie presume that accused committed the offence. As this aspect was not considered by the Chief Judicial Magistrate, the order dated 1.1.2009 dismissing CMP.2802 of 2008 is set aside. CMP.2802 of 2008 is restored to file. Chief Judicial Magistrate, Thiruvananthapuram is directed to hear the revision petitioners as well as prosecutor and pass appropriate order in CMP.2802 of 2008. It is made clear that if CRRP 297/2009 4 on the materials, Chief Judicial Magistrate finds that there are materials to presume that both the revision petitioners or any of them committed any of the offences as alleged by prosecution, or any other offence, the Magistrate is competent to frame charge for those offences. M. SASIDHARAN NAMBIAR, JUDGE okb