Kerala High Court
Vinod V vs State Of Kerala on 5 November, 2024
2024:KER:81975
CRL.REV.PET NO. 1187 OF 2024
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
TUESDAY, THE 5TH DAY OF NOVEMBER 2024/14TH KARTHIKA, 1946
CRL.REV.PET NO. 1187 OF 2024
CRIME NO.310/2019 OF THAMARASSERY POLICE STATION,
KOZHIKODE
AGAINST THE ORDER DATED 04.09.2024 IN CC NO.463 OF
2019 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II,
THAMARASSERY
REVISION PETITIONERS/PETITIONER/ACCUSED NOS.1 TO 3:
1 VINOD V
AGED 42 YEARS
S/O. PADMANABHAN, VILAYIL HOUSE,
KALLANODE P.O., KAKKAYAM,
KOZHIKODE., PIN - 673615
2 AMMINI
AGED 65 YEARS
W/O. PADMANABHAN , VILAYIL HOUSE,
KALLANODE P.O.KAKKAYAM,
KOZHIKODE., PIN - 673615
3 MANOJ
AGED 39 YEARS
S/O. PADMANABHAN, VILAYIL HOUSE,
KALLANODE P.O.KAKKAYAM,
KOZHIKODE., PIN - 673615
BY ADVS.
ASHOK K.V.
SETHULEKSHMI PRABHA
2024:KER:81975
CRL.REV.PET NO. 1187 OF 2024
2
RESPONDENTS/RESPONDENTS/COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM, PIN - 682031
2 STATION HOUSE OFFICER
MUKKAM POLICE STATION,
KOZHIKODE, PIN - 673602
SRI.M.P.PRASANTH, PUBLIC PROSECUTOR
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
ADMISSION ON 05.11.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
2024:KER:81975
CRL.REV.PET NO. 1187 OF 2024
3
ORDER
Dated this the 5th day of November, 2024
This Criminal Revision Petition has been filed under
Sections 438 and 442 of the Bharatiya Nagarik Suraksha
Sanhita, 2023 by the revision petitioners, who are accused
Nos.1 to 3 in C.C.No.463/2019 on the files of the Judicial
First Class Magistrate Court-II, Thamarassery, challenging
order dated 04.09.2024 in CMP No.2447/2024 in
C.C.No.463/2019, whereby the learned Magistrate dismissed
the petition filed under Section 239 of the Code of Criminal
Procedure seeking discharge.
2. Heard the learned counsel for the revision
petitioners and the learned Public Prosecutor in detail.
Perused the relevant documents.
3. In this matter, the revision petitioners had
filed Crl.M.C.No.6750/2019 to quash the proceedings in
C.C.No.463/2019 on the files of the Judicial First Class
2024:KER:81975
CRL.REV.PET NO. 1187 OF 2024
Magistrate Court-II, Thamarassery and as per Annexure A11
order dated 10.07.2024, this Court disposed of the Crl.M.C.
with liberty to the petitioners to file discharge petition before
the trial court. Accordingly, discharge petition, vide CMP
No.2447/2024, was filed and the same was dismissed by the
learned Magistrate as per the impugned order, holding that
there are materials prima facie to frame charge and go for
trial. The relevant observation is as extracted in paragraph
No.5 of the impugned order and the same is as under:
"On a careful perusal of the entire
prosecution records, it has come out that the informant
who lodged the first information statement had
specifically detailed in her statement that she was
residing along with her husband, her brother-in-law
and mother-in-law and at that time her mother-in-law,
brother-in-law and her husband used to physically
assault her. While at the time of hearing, the counsel
for the accused had placed a series of documents
including the ex parte order passed by the Hon'ble
Family Court, Kozhikode along with other complaints
and the FIR. However, this court is of the firm opinion
that the defense of the accused is not to be looked
2024:KER:81975
CRL.REV.PET NO. 1187 OF 2024
into at the stage when the accused seeks to be
discharged. The expression 'record of the case' used
in Sec.239 of the Cr.P.C. is to be understood as the
documents and articles, if any, produced by the
prosecution. The code does not give any right to the
accused to produce any document at the stage of
framing of the charge. The submission of the accused
is to be confined to the materials produced by the
investigating agency. The primary consideration at the
stage of framing of charge is the test of existence of a
prima facie case, and at this stage, the probative value
of materials on record need not be looked into. The
Hon'ble Supreme Court in State of Madhyapradesh
Vs. Mohanlal Sony (2002 KLT online 1021) has held
that, 'the nature of evaluation to be made by the court
at the stage of filing of charge is to test the existence
of a prima facie case. The court has to form a
presumptive opinion to the existence of the factual
ingredients constituting the offence alleged and it is
not expected to go deep in the probative value of the
materials on record and to check whether the material
on record would certainly lead to conviction at the
conclusion of trial".
4. While seeking interference of the order
impugned, it is pointed out by the learned counsel for the
2024:KER:81975
CRL.REV.PET NO. 1187 OF 2024
revision petitioners that the case was registered after five
years, only when the first petitioner filed Annexure A7
Crl.M.C.No.4506/2019 before this Court, alleging paramour
relationship with the defacto complainant. Therefore, the
entire allegations are false and dismissal of the discharge
petition, filed by the revision petitioners, is only to be
interfered and to allow the same.
5. Disputing the challenge raised by the
learned counsel for the revision petitioners, it is submitted by
the learned Public Prosecutor that going by the prosecution
allegations, as dealt in paragraph No.5 of the impugned
order, there are specific allegations against the revision
petitioners to see commission of the alleged offences,
warranting trial. Therefore, the trial court rightly dismissed the
discharge petition and the same does not require any
interference.
6. Going by the allegations at par with the
observations of the learned Magistrate, as extracted herein
2024:KER:81975
CRL.REV.PET NO. 1187 OF 2024
above, in paragraph No.5, it appears that prima facie the
offences are made out, warranting trial. In such a case,
discharge is only to fail.
7. It is settled law that in order to consider
discharge, the materials would show that there is nothing to
suggest the commission of offence and even a strong
suspicion which would made a prima facie case to be born
out from the materials is sufficient to frame charge and
proceed with the trial.
8. In this case, prima facie the allegations
against all the accused are made out prima facie. This may
be the reason why the learned Single Judge disposed of the
Crl.M.C. seeking quashment of the proceedings with
direction to file discharge petition. Thus, it is held that the
learned Magistrate rightly dismissed the discharge petition
and the said order does not require any interference.
Therefore, this criminal revision petition fails and is dismissed
accordingly.
2024:KER:81975
CRL.REV.PET NO. 1187 OF 2024
9. Since it is submitted by the learned counsel
for the revision petitioners that as of now, warrant has been
issued against the revision petitioners/accused Nos.1 to 3 for
their non-appearance and the matter is matrimonial dispute,
the revision petitioners are directed to surrender before the
trial court within a period of seven days from today. In order
to facilitate the revision petitioners to surrender within seven
days, coercive steps against them, stand deferred for a
period of seven days alone and not thereafter. On surrender
of the revision petitioners, the further proceedings shall be at
the helm of the learned Magistrate as per law.
Registry is directed to inform this matter to the
jurisdictional court forthwith for information and further steps.
Sd/-
A. BADHARUDEEN
JUDGE
nkr
2024:KER:81975
CRL.REV.PET NO. 1187 OF 2024
APPENDIX OF CRL.REV.PET 1187/2024
PETITIONER ANNEXURES
ANNEXURE A1 TRUE COPY OF THE JUDGMENT IN OP. NO.
930/ 2014 DATED 11.02.2015 OF THE
FAMILY COURT KOZHIKODE
ANNEXURE A2 TRUE COPY OF THE STATEMENT GIVEN BY
THE DEFACTO COMPLAINANT TO THE WSCPO
MUKKAM POLICE STATION DATED 26.05.2019
ANNEXURE A3 TRUE COPY OF THE COMPLAINT GIVEN BY
THE FIRST PETITIONER DATED 19.10.2018
ANNEXURE A4 TRUE COPY ITS RECEIPT FOR THE
COMPLAINT GIVEN BY THE FIRST
PETITIONER DATED 19.10.2018
ANNEXURE A5 TRUE COPY OF THE COMPLAINT GIVEN BY
THE FATHER OF THE DEFACTO COMPLAINANT,
C.T. UNNIKRISHNAN DATED 19.10.2018
ANNEXURE A6 TRUE COPY ITS RECEIPT FOR THE
COMPLAINT GIVEN BY THE FATHER OF THE
DEFACTO COMPLAINANT DATED 19.10.2018
ANNEXURE A7 TRUE COPY OF THE AFFIDAVIT DATED
17.06.2019 BY CW-1 ALONG WITH THE
PETITION DATED 26.06.2019 FILED BY THE
PARAMOUR UNDER SECTION 482 CR PC FOR
STAY, BEFORE THE HON'BLE HIGH COURT IN
ANNEXURE A8 TRUE COPY OF THE AFFIDAVITS DELAY
CONDONATION PETITION IA. 99/ 2020 IN
OP 930/ 2014 POSTED TO 17.04.2020
ANNEXURE A9 TRUE COPY OF THE AFFIDAVITS IN IA. NO
100/ 2020 IN OP 930/ 2014 TO SET ASIDE
EX-PARTE POSTED TO 17.04.2020
ANNEXURE A10 TRUE COPY OF THE DIVORCE PETITION
FILED BY THE WIFE OF THE PARAMOUR
(SHYAMLAL) DATED 13.07.2021
ANNEXURE A11 TRUE COPY OF THE JUDGMENT IN CRL M.C.
2024:KER:81975
CRL.REV.PET NO. 1187 OF 2024
NO. 6750 / 2019 DATED 10.07.2024
ANNEXURE A12 TRUE COPY OF THE CMP. 2447/ 2024 FILED
BY THE PETITIONERS BEFORE THE
MAGISTRATE COURT ON 08.08.2024
ANNEXURE A13 TRUE COPY OF THE COUNTER STATEMENT
FILED BY THE PROSECUTOR BEFORE THE
MAGISTRATE COURT DATED 14.08.2024
ANNEXURE A14 CERTIFIED COPY OF THE ORDER IN CMP NO.
2447/2024 IN CC NO.463/2019 DISMISSING
THE DISCHARGE PETITION FILED BY THE
PETITIONERS DATED 04.09.2024
RESPONDENTS ANNEXURES : NIL
