Hani Thankachan and others v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 16TH MARCH 2011 / 25TH PHALGUNA 1932 Crl.Rev.Pet.No. 738 of 2011() ----------------------------AGAINST THE ORDER DATED IN CMP.3020/2010 IN CC.61/2006 of JUDL. MAGISTRATE OF FIRST CLASS COURT-III, TRIVANDRUM .................... REVN. PETITIONERS: ACCUSED 2 TO 4 ----------------------------------- 1. HANI THANKACHAN, W/O. THANKACHAN, RESIDING AT MULAYANIKUNNU VEEDU, KARIKUNNAM VILLAGE, THODUPUZHA TALUK, IDUKKI DISTRICT. 2. MANIKANDAN, S/O. KUTTANPILLA, MANGALATHU VEEDU, CHERUVIRIPPU LINE, CHAKKARAPARAMBU, KANAYANNOOR TALUK, ERNAKULAM DISTRICT. 3. ANIKUMAR, S/O. K.V.KUMAR, C.C.16/434, THARAYIL HOUSE, THOPPUMPADI, KOCHI - 682005. - BY ADV. SRI.T.RAMPRASAD UNNI SMT.SMITHA GEORGE RESPONDENTS: ----------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 682031 2. THE SUB INSPECTOR OF POLICE, THAMPANNOOR POLICE STATION 695001. BY PUBLIC PROSECUTOR SMT. REKHA C. NAYAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 16/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## V.K.MOHANAN, J. ## ---------------------------------------Crl.R.P No. 738 of 2011 ---------------------------------------- Dated the 16th Day of March, 2011 ## ORDER The revision petitioners are the accused in C.C.No.61/2006 on the file of the Judicial First Cass Magistrate Court-III, Thiruvananthapruam. In this Cr.R.P., the challenge is against the order dated 14.2.2011 in CMP No.3020/10 in C.C.No.61/2006 of the trial court by which the petitioners' prayer for discharge under section 239 of Cr.P.C is declined. 2. I have heard the learned Senior Counsel Sri K. Ramakumar appearing for the revision petitioners as well as the learned Public prosecutor . 3. The Senior Counsel strenuously submitted that while issuing the order impugned, the learned Magistrate exceeded his jurisdiction and went to the extent to hold that the accused are liable to be 2 CRRP 738/11 convicted and punished, which is totally unwarranted. 4. On the other hand, the learned Public Prosecutor submitted that all the contentions of the petitioners had already been considered by this court while disposing of the Cr.M.C. No.2116/2007 filed by the very same petitioners and this Court has found that, out of the offences alleged against the petitioners under sections 3, 4, 6 of Immoral Traffic (Prevention) Act 1956 and Section 67 of information Technology Act 2000 and Section 292 (2) read with section 34 IPC, Section 3 of Immoral Traffic (Prevention) Act and section 67 of the Information Technology Act, 2000 will not lie against the accused and it is specifically found that all other offences would lie. It is thereafter the petitioners preferred the present petition under 3 CRRP 738/11 section 239 Cr. P.C seeking their discharge from the above case. Thus according to the learned Public Prosecutor, the order of the learned Magistrate is perfectly legal and valid and no interference is called for. ## 5. The learned Magistrate as per the impugned order held that, “ upon considering the final report and the documents sent with it and after hearing the prosecution and the accused I am of the opinion that there is ground for presuming that the accused have committed the offences under sections 3, 4, 6 of Immoral Traffic(Prevention) Act and Section 292(2) read with section 34 IPC and could be adequately punished. Hence the above petition is dismissed”. On a scrutiny of the impugned order, I am of the view that the above order of the learned Magistrate is not legally sustainable on two grounds. First of all, CRRP 738/11 4 while considering the petition filed under section 239 Cr.P.C, the jurisdiction of the trial Magistrate is very limited and his only task is to find out whether there is sufficient grounds or prima facie case to proceed against the accused. Under Section 239 Cr.P.C, no objective assessment is contemplated as to whether there is any possibility for conviction or otherwise, if the trial is taken place. In the present case, the learned Magistrate, as per his finding in this impugned order, exceeded his jurisdiction and went to the extent to hold that the accused are liable to be convicted and punished. The above approach of the learned Magistrate is against the settled position of law, particularly, in view of the decision of the Apex Court in Sajjan Kumar v. CBI (2010 (9) SCC 368). Therefore, the above order is liable to be set aside on that ground alone. CRRP 738/11 5 6. Secondly, it is a settled position of law particularly in view of the decision of this Court in Vijayan v. State of Kerala (2007(3) KLT 495) that, at the time of framing charge, the trial Magistrate or the Sessions Court need not pass an elaborate order but when an application for discharge is filed by the accused and while passing orders thereon, the trial court is bound to pass a speaking order. But in the present case, going by the order, it can be seen that after stating the prosecution case, as well as the ground putforth by the accused, there is no reference to any of the materials produced by the prosecution along with the charge so as to come into a conclusion as to whether any prima facie case is made out or there are grounds to proceed against the accused. On the other hand, merely banking 6 CRRP 738/11 upon the order of this court in Crl.M.C. No.2116/2007 the learned Magistrate has come into a finding and held as stated above. From the above order it appears to me that the learned Magistrate miserably failed to apply his judicial mind independently. It is also relevant to note that, non-application of mind is crystal clear from the impugned order itself since even though, while disposing of the Crl.M.C, this Court has held that Section 3 of the Immoral Traffic (Prevention) Act is not attracted, the learned Magistrate ignoring the above finding, went to the extent to say that Section 3 of the Immoral Traffic (Prevention) Act attracted as well. Therefore, according to me, the order impugned is not sustainable and liable to be set aside. In the result, this Crl.R.P is allowed setting aside the order dated 14.2.2011 in CMP No.3020/10 CRRP 738/11 7 in C.C.No.61/2006 and remitted the matter back to the trial court for fresh consideration and for issuing appropriate orders after hearing the prosecution as well as the accused. V.K.MOHANAN, JUDGE kvm/- CRRP 738/11 8