Crl.Rev.Pet.No. 1025 of 2012

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** **MONDAY, THE 8TH DAY OF JULY 2013/17TH ASHADHA, 1935** **Crl.Rev.Pet.No. 1025 of 2012 ()** **--------------------------------** **AGAINST THE ORDER IN CMP NO.4889/08 IN CC 403/2008 of J.M.F.C.-II,ATTINGAL DATED 7/4/2012.** **REVISION PETITIONER(S)/REVISION PETITIONERS: --------------------------------------------** **1. A.ABDUL SALIM, K.K. HOUSE, DECENTUMUKKU, NAVAIKULAM, KUDAVOOR VILLAGE, TRIVANDRUM.** **2. SHAFEEK, K.K. HOUSE, DECENTUMUKKU, NAVAIKULAM KUDAVOOR VILLAGE, TRIVANDRUM.** **3. SHAJITHA, K.K. HOUSE, DECENTUMUKKU, NAVAIKULAM KUDAVOOR VILLAGE, TRIVANDRUM.** **BY ADV. SRI.T.M.ABDUL LATHEEF** **RESPONDENTS/STATE, COUNTER PETITIONER & DE FACTO COMPLAINANT :** **---------------------------------------------------------** **1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.** **2. THE SUB INSPECTOR OF POLICE, KAZHAKUTTO0M-695582.** **3. THE SUB INSPECTOR OF POLICE, KILIMANOOR-695601.** **4. MUBEENA, D/O. NAZEEMA BEEVI, J.J. MANZIL, VETTU ROAD, KAZHAKUTTOM-695582.** **R4 BY ADV. SRI.SABU S.KALLARAMOOLA BY PUBLIC PROSECUTOR SRI. LIJU V. STEPHEN** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 08-07-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **K. HARILAL, J. -----------------------------------------------------Crl.R.P. No. 1025 of 2012 -----------------------------------------------------Dated this the 8[th] day of July, 2013** ## **ORDER** This Revision Petition is filed challenging the order passed in CMP.No.4889/2008 in CC.No.403/2008 on the files of the Judicial First Class Magistrate-II, Attingal. The above petition was filed under Section 239 of the Code of Criminal Procedure seeking discharge from prosecution. The Revision Petitioners 1 to 3 are accused Nos.2, 4 and 5 in the above CC. The defacto complainant is the wife of the first accused. He is the son of the first Revision Petitioner and brother of the Revision Petitioners 2 and 3. The third accused in the said case was the mother of the Revision Petitioners 2 and 3 and the first accused. She died during the pendency of the proceedings. **Crl.R.P. No. 1025 of 2012** -: 2 :- 2. The allegation against the Revision Petitioners is that the Revision Petitioners had stated that the defacto complainant is not a beautiful woman and that there was no dowry and that their brother would have got more dowry and a more beautiful girl. According to them, they are made as accused in Crime No.535/2005 of Kazhakkoottom police station on the strength of the said allegation only. But the said allegation by itself does not make out any offence under Section 498-A. The deceased mother when she was alive approached this Court by filing Crl.MC.No.3060/2008 under Section 482 of the Cr.PC for quashing the proceedings. But this Court directed the Revision Petitioners herein and the deceased mother to approach the lower court to claim discharge. Presently, the above petition was filed in compliance with the order passed by this Court in Crl.MC.No.3060/2008. But the court below dismissed the above application on the ground that there is ground to proceed against the accused. This order is under challenge in this Revision Petition. 3. The learned counsel for the Revision Petitioners **Crl.R.P. No. 1025 of 2012** -: 3 :- submits that the impugned order is illegal, unsustainable and passed without considering the statutory requirements under Section 239 of the Cr.PC. In short, the argument is that the order under challenge is not a speaking order. The learned counsel contends that the specific case of the Revision Petitioners is that the allegations do not constitute the offence alleged against them. Hence the learned Magistrate ought to have considered the materials on record meticulously. 4. Per contra, the learned counsel for the respondent submits that on a petition under Section 239 of the Cr.PC, there is no need to pass a speaking order. A speaking order shall be passed only if the Magistrate allow the application filed under Section 239 of the Cr.PC. So, the impugned order under challenge is justifiable and not liable to be interfered with. The learned counsel further cited **Honey Thankachan v. State of Kerala** (2012(2) KLT 209) and drew my attention to paragraph 8 of the said decision. 5. I have given my anxious consideration to the submissions made by the respective counsel at the Bar. In **Crl.R.P. No. 1025 of 2012** -: 4 :- view of the rival contentions, the question to be considered is whether there is any illegality or impropriety in the impugned order. The findings in the impugned order read as follows: “3. On perusal of records and documents by the prosecution, I find that there is ground to proceed against the accused. Hence, the discharge petition is dismissed.” Going by the impugned order it could be seen that apparently the order is a nonspeaking, cryptic as well as laconic. The learned Magistrate claims that he had perused the materials produced along with the report filed by the police. Prima facie, I find that a perusal of the record is not sufficient under Section 239 of the Cr.PC. Going by Section 239 of the Cr.PC, the section itself says that, if, upon considering the police report, and the documents sent with it under section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of **Crl.R.P. No. 1025 of 2012** -: 5 :- being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing. What are the statutory observance under Sec.239 of the Cr.P.C.? On an analysis of the above section it could be seen that the statutory observance under Section 239 of the Cr.PC consist of three things ie., (1) the consideration of the police report and also the examination of the document sent along with the report under Section 173; (2) making such examination, if any, of the accused as the Magistrate thinks necessary and (3) giving the prosecution and the accused an opportunity of being heard. 6. Needless to say, the impugned order does not say that the order was passed after complying the above statutory observance. I am of the opinion that a mere perusal of a document and the consideration of a document are different and in the latter the degree of application of mind is more rather than the former. The consideration certainly requires sufficient application of mind. Obviously, none of the above things are observed in the **Crl.R.P. No. 1025 of 2012** -: 6 :- impugned order. Therefore, I have no hesitation to hold that the impugned order is passed in violation of the statutory observance under Section 239 of the Cr.PC. 7. Certainly, the grounds which are seen in the police report and documents can be observed in the order without weighing the scope of reliability or credibility or without making any findings as to whether the same would end in conviction or acquittal. It is true that such a finding will go beyond the outer limits of jurisdiction provided under Sec.239 of the Cr.P.C. Thus, the scope of considerations under Sec.239 of the Cr.P.C. and at the time of final hearing after trial are well distinguishable and earmarked. It is to be borne in mind of the learned Magistrate that the order which is required to be passed under Sec.239 of the Cr.P.C. is a revisable order under the revisional jurisdiction. Therefore, the specific grounds under which the petition is dismissed must be manifested in the order. 8. The learned counsel for the respondent submits that if the Magistrate passes a detailed order that would cause prejudice to him as trial is not commenced. I am unable to **Crl.R.P. No. 1025 of 2012** -: 7 :- accept that argument because what is stated in the earlier decision will be helpful to consider this aspect. In the decision in **Honey Thankachan v. State of Kerala** (2012 (2) KLT 209), the dictum laid down is that in an enquiry under Section 239 of the Code, the Magistrate is concerned only with the question whether there are grounds to presume the guilt of the accused for the offences triable as a warrant case and at that stage, the truth, veracity and effect of the materials, which is proposed to be adduced by the prosecution is not to be meticulously adjudged. Certainly, the decision laid down is conformed with the statutory requirements under Section 239 of the Cr.PC ie., the Magistrate is not required to adjudge or assess the veracity and truth of the materials. 9. But that does not mean that Magistrate shall not consider whether there are sufficient grounds to proceed against the accused or the Magistrate can pass a nonspeaking order under the guise of prejudice. Certainly, the Magistrate can look into the question whether the allegations in the police report and the documents produced **Crl.R.P. No. 1025 of 2012** -: 8 :- along with are admitted at its entirety that will constitute any offence alleged against him. So, there is no legal impediment in the way of assessing the materials produced along with the police report to find out the question whether it will disclose the offence alleged against him. 10. Therefore, I find that the decision quoted above will not render any assistance or help to the respondent. The impugned order is perse unsustainable under law and I am inclined to set aside it and I do so. Consequently, the impugned order is set aside and remitted back to the trial court for fresh consideration in accordance with law, keeping in view of the observations made above. The Magistrate shall pass fresh orders within a period of four months from today. ## **Sd/-** ## **(K. HARILAL, JUDGE)** ## **Kvs/** //true copy// P.S. to Judge