[Cites 18, Cited by 0]
Kerala High Court
Shiyas P.H vs State Of Kerala on 4 February, 2026
Author: K.Babu
Bench: K. Babu
2026:KER:11111
1
Crl.R.P No.1350 of 2025
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
WEDNESDAY, THE 4TH DAY OF FEBRUARY 2026 / 15TH MAGHA, 1947
CRL.REV.PET NO. 1350 OF 2025
CRIME NO.120/2019 OF KOLLAM WEST POLICE STATION, KOLLAM
AGAINST THE ORDER DATED 12.11.2025 IN CRMP 2436/2025 IN CC
NO.124 OF 2019 OF JUDICIAL FIRST CLASS MAGISTRATE COURT -
III, KOLLAM
REVISION PETITIONER/ACCUSED:
SHIYAS P.H.
AGED 43 YEARS
SON OF ASANARUKUNJU, PUTHENVILA NEW MANZIL,
PIN - 690521
BY ADV SHRI.R.MAHESH (KOTTAPPURAM)
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031
BY ADV
P NARAYANAN SPL GP TO DGP..ADV SAJJU S, SR.GP
THIS CRIMINAL REVISION PETITION HAVING BEENN FINALLY
HEARD ON 04.02.2026, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
2026:KER:11111
2
Crl.R.P No.1350 of 2025
K.BABU, J.
--------------------------------------
Crl.R.P No.1350 of 2025
---------------------------------------
Dated this the 4th day of February, 2026
ORDER
The Revision Petitioner challenges the order dated 12.11.2025
in C.M.P No.2436/2025, an application seeking discharge filed under
Section 239 Cr.PC, on the file of the Judicial First Class Magistrate
Court-III, Kollam. The revision petitioner is the accused in C.C
No.124/2019. He is alleged to have committed the offences
punishable under Sections 323, 324 and 506(i) of the IPC.
2. The prosecution case as narrated in Anx.A5 order in CMP
No.2436/2025 reads thus:
"On 09.02.2019, at about 10.00 a.m., the defacto complainant,
along with his sons, was present at the Hon'ble Family
Court, Kollam, for handing over the seven-year-old son of
his late daughter to the petitioner, as per the interim order
of the Hon'ble Family Court. After handing over the child to
the petitioner, the child expressed reluctance to go with
him. The petitioner allegedly pinched the child, causing him
to cry. When the defacto complainant questioned this act,
the petitioner shouted, saying, "I will beat and kill my son.
Who are you to question me? You are the only barrier to
getting custody of my child," and thereby threatened to kill
2026:KER:11111
the defacto complainant. It is further alleged that the
petitioner beat the defacto complainant on his chest, pulled
him, and attempted to hit him with a stone. When the
younger son of the defacto complainant tried to intervene,
the stone fell on his foot, causing injury to his foot and
head."
3. The petitioner filed an application under Section 239 Cr.PC.
The learned Magistrate dismissed the application holding that the
prosecution prima facie established the ingredients of the offences
alleged.
4. I have heard the learned counsel for the petitioner and the
learned Public Prosecutor.
5. The learned counsel for the petitioner submitted that there
are no materials to establish the offences alleged.
6. The learned Public Prosecutor, per contra, submitted that
the prosecution records prima facie reveal the ingredients of the
offences alleged. The learned Public Prosecutor further submitted
that the contentions raised by the petitioner in the Trial Court are
the questions to be considered at the time of trial.
7. Sections 239 and 240 of the Code of Criminal Procedure
deal with discharge and framing of charge.
2026:KER:11111
8. The obligation to discharge the accused under Section 239
Cr.P.C. arises when "the Magistrate considers the charge against
the accused to be groundless."
9. The primary consideration at the stage of framing charge is
the test of the existence of a prima facie case. The probative value
of the materials on record is not to be gone into at this stage.
10. The Apex Court in Onkar Nath Mishra and others v. State
(NCT of Delhi) and another [(2008) 2 SCC 561] while considering the
nature of evaluation to be made by the Court at the stage of framing
of charge held thus:-
"11. It is trite that at the stage of framing of charge the court is
required to evaluate the material and documents on record
with a view to finding out if the facts emerging therefrom,
taken at their face value, disclosed the existence of all the
ingredients constituting the alleged offence. At that stage, the
court is not expected to go deep into the probative value of the
material on record. What needs to be considered is whether
there is a ground for presuming that the offence has been
committed and not a ground for convicting the Accused has
been made out. At that stage, even strong suspicion founded
on material which leads the court to form a presumptive
opinion as to the existence of the factual ingredients
constituting the offence alleged would justify the framing of
charge against the Accused in respect of the commission of
that offence."
11. In State of Maharashtra v. Som Nath Thapa [(1996) 4 SCC
2026:KER:11111
659], while dealing with the question of framing charge or
discharge the Apex Court held thus:-
"32...if on the basis of materials on record, a court could come
to the conclusion that commission of the offence is a probable
consequence, a case for framing of charge exists. To put it
differently, if the court were to think that the Accused might
have committed the offence it can frame the charge, though
for conviction the conclusion is required to be that the
Accused has committed the offence. It is apparent that at the
stage of framing of a charge, probative value of the materials
on record cannot be gone into; the materials brought on
record by the prosecution has to be accepted as true at that
stage."
12. In State of M.P. v. Mohanlal Soni [(2000) 6 SCC 338] the
Apex Court held thus:
"7. The crystallised judicial view is that at the stage of framing
charge, the court has to prima facie consider whether there
is sufficient ground for proceeding against the Accused. The
court is not required to appreciate evidence to conclude
whether the materials produced are sufficient or not for
convicting the Accused."
13. In Sheoraj Singh Ahlawat and others v. State of Uttar
Pradesh and another [(2013) 11 SCC 476], the Apex Court observed
that while framing charges the Court is required to evaluate the
materials and documents on record to decide whether the facts
emerging therefrom taken at their face value would disclose
existence of ingredients constituting the alleged offence. It was
2026:KER:11111
further held that the Court cannot speculate into the truthfulness or
falsity of the allegations, contradictions and inconsistencies in the
statement of witnesses at the stage of discharge.
14. Section 239 envisages a careful and objective
consideration of the question whether the charge against the
Accused is groundless or whether there is ground for presuming
that he has committed an offence. What Section 239 prescribes is
not, therefore, an empty or routine formality. It is a valuable
provision to the advantage of the accused, and its breach is not
permissible under the law. But if the Judge, upon considering the
record, including the examination, if any, and the hearing, is of the
opinion that there is "ground for presuming" that the accused has
committed the offence triable under the chapter, he is required by
Section 240 to frame in writing a charge against the Accused. The
order for the framing of the charge is also not an empty or routine
formality. It is of a far-reaching nature, and it amounts to a decision
that the accused is not entitled to discharge under Section 239, that
there is, on the other hand, ground for presuming that he has
2026:KER:11111
committed an offence triable under Chapter XIX and that he should
be called upon to plead guilty to it and be convicted and sentenced
on that plea, or face the trial. (See: V.C. Shukla v. State through CBI
(AIR 1980 SC 962)."
15. In Superintendent and Remembrancer of Legal Affairs,
West Bengal v. Anil Kumar Bhunja [(AIR 1980 SC 52)] the Apex
Court stated thus:
"At this stage, even a very strong suspicion founded upon
materials before the Magistrate, which leads him to form a
presumptive opinion as to the existence of the factual
ingredients constituting the offence alleged, may justify the
framing of charge against the accused in respect of the
commission of that offence."
16. In State by Karnataka Lokayukta, Police Station, Bengaluru
v. M.R.Hiremath [(2019) 7 SCC 515] the Apex Court held thus:
"25. The High Court ought to have been cognizant of the fact
that the trial court was dealing with an application for
discharge under the provisions of Section 239 Cr.P.C. The
parameters which govern the exercise of this jurisdiction
have found expression in several decisions of this Court. It is
a settled principle of law that at the stage of considering an
application for discharge the court must proceed on the
assumption that the material which has been brought on the
record by the prosecution is true and evaluate the material
in order to determine whether the facts emerging from the
material, taken on its face value, disclose the existence of
the ingredients necessary to constitute the offence. In State
of T.N. v. N. Suresh Rajan (2014) 11 SCC 709), adverting to the
earlier decisions on the subject, this Court held: (SCC pp.
2026:KER:11111
721-22, para 29)
29. ... At this stage, probative value of the materials has to be
gone into and the court is not expected to go deep into the
matter and hold that the materials would not warrant a
conviction. In our opinion, what needs to be considered is
whether there is a ground for presuming that the offence
has been committed and not whether a ground for convicting
the Accused has been made out. To put it differently, if the
court thinks that the Accused might have committed the
offence on the basis of the materials on record on its
probative value, it can frame the charge; though for
conviction, the court has to come to the conclusion that the
Accused has committed the law does not permit a mini trial
at this stage."
17. In State through Deputy Superintendent of Police v. R.
Soundirarasu and Ors. (AIR 2022 SC 4218) the Apex Court while
dealing with the scope of Section 239 Cr.P.C. held thus:
"61. Section 239 of the Code of Criminal Procedure lays
down that if the Magistrate considers the charge against the
Accused to be groundless, he shall discharge the Accused.
The word 'groundless', in our opinion, means that there must
be no ground for presuming that the Accused has committed
the offence. The word 'groundless' used in Section 239 of the
Code of Criminal Procedure means that the materials placed
before the Court do not make out or are not sufficient to
make out a prima facie case against the Accused.
.........................
73. This would not be the stage for weighing the pros
and cons of all the implications of the materials, nor for
sifting the materials placed by the prosecution- the exercise
at this stage is to be confined to considering the police
report and the documents
to decide whether the allegations against the Accused can
be said to be "groundless".
74. The word "ground" according to the Black's Law
Dictionary connotes foundation or basis, and in the context
of prosecution in a criminal case, it would be held to mean
2026:KER:11111
the basis for charging the Accused or foundation for the
admissibility of evidence. Seen in the context, the word
"groundless" would connote no basis or foundation in
evidence. The test which may, therefore, be applied for
determining whether the charge should be considered
groundless is that where the materials are such that even if
unrebutted, would make out no case whatsoever."
18. Therefore, the obligation to discharge the accused under
Section 239 Cr.P.C. arises when the Magistrate/Special Judge
considers the charge against the accused to be groundless that is,
there is no legal evidence or when the facts are such that no
offence is made out at all and no detailed evaluation of the
materials or meticulous consideration of the possible defences
need be undertaken at this stage nor any exercise of weighing
materials in golden scales is to be undertaken.
19. The case of the prosecution is that the petitioner
voluntarily caused hurt to the defacto complainant on the premises
of the Family Court, Kollam, where the parties were present in
connection with a matrimonial dispute. The defacto complainant
has given FIS in tune with the prosecution case. CW Nos.2 to 4 are
the occurrence witnesses. They also gave statement in support of
the allegations based on the FIS against the petitioner. The medical
2026:KER:11111
records produced by the prosecution support the prosecution case.
20. After considering the relevant materials, the learned
Magistrate recorded thus:
"8. Upon a perusal of the prosecution records, it is seen that
the ingredients necessary to constitute the offences alleged
are prima facie made out. Though the learned counsel for the
petitioner contended that the mens rea required for the
alleged offences has not been clearly brought out in the
prosecution version, it is noted from his own submissions that
there exists previous animosity between the parties. The
existence of such animosity cannot, at this stage, be ruled out
as a possible motive for the alleged occurrence. The medical
records produced along with the prosecution materials also
support the prima facie satisfaction regarding the commission
of the alleged offences. The wound certificates of the injured
persons further corroborate this assumption. On going
through the statements of witnesses in the charge sheet, it
cannot be said that none of the ingredients of the alleged
offences are made out. At this stage, the limited consideration
before this Court is whether the prima facie ingredients of the
offences alleged are disclosed from the materials placed on
record. Therefore, this Court is of the view that there are
sufficient grounds to proceed against the petitioner for the
offences alleged."
21. Unless the order passed by the Magistrate is perverse or
the view taken by the court is wholly unreasonable or there is non-
consideration of any relevant material or there is palpable
misreading of records, the Revisional Court is not justified in
setting aside the order, merely because another view is possible.
The Revisional Court is not meant to act as an appellate court. The
2026:KER:11111
whole purpose of the revisional jurisdiction is to preserve the
power in the court to do justice in accordance with the principles of
criminal jurisprudence. The revisional power of the court under
Sections 397 to 401 Cr.P.C is not to be equated with that of an
appeal. Unless the finding of the court, whose decision is sought to
be revised, is shown to be perverse or untenable in law or is
grossly erroneous or glaringly unreasonable or where the decision
is based on no material or where the material facts are wholly
ignored or where the judicial discretion is exercised arbitrarily or
capriciously, the courts may not interfere with decision in exercise
of their revisional jurisdiction. {Vide: Sanjaysinh Ramrao Chavan v.
Dattatray Gulabrao Phalke [(2015) 3 SCC 123], Munna Devi v. State of
Rajasthan & Anr [(2001) 9 SCC 631)] and Asian Resurfacing of Road
Agency Pvt. Ltd. v. Central Bureau of Investigation [(2018) 16 SCC
299)]}.
22. In Asian Resurfacing of Road Agency Pvt. Ltd. v. Central
Bureau of Investigation [(2018) 16 SCC 299)] the Apex Court held
that interference in the order framing charges or refusing to
2026:KER:11111
discharge is called for in the rarest of rare cases only to correct a
patent error of jurisdiction.
23. This Court is of the view that the order impugned is not
affected by any patent error of jurisdiction.
24. All the challenges in this revision petition therefore fail.
It is made clear that I have not made any observation on the merits
of the prosecution case. The observations made in this order are
only for ascertaining whether the charges levelled are groundless
or not. The petitioner is at liberty to raise all the contentions during
trial.
The Criminal Revision Petition stands dismissed.
Sd/-
K.BABU,
JUDGE
KAS
2026:KER:11111
APPENDIX OF CRL.REV.PET NO. 1350 OF 2025
PETITIONER ANNEXURES
Annexure-A1 A TRUE COPY OF THE FIR IN CRIME
NO.120/2019 OF KOLLAM WEST POLICE
STATION DATED 11.02.2019
Annexure-A2 A TRUE COPY OF THE FINAL REPORT IN
C.C.NO.124/2019 IN CRIME NO.120/2019
DATED 14.03.2019
Annexure-A3 A TRUE COPY OF THE JUDGEMENT IN
CRL.M.C.NO.9169 OF 2023 DATED
18.02.2025
Annexure-A4 A TRUE COPY OF THE DISCHARGE PETITION,
CRL.M.P.NO.2436/2025 FILED BEFORE THE
JUDICIAL FIRST-CLASS MAGISTRATE COURT,
KOLLAM-III DATED NIL
Annexure-A5 CERTIFIED COPY OF THE ORDER IN CRL.M.P.
NO. 2436/2025 JUDICIAL FIRST-CLASS
MAGISTRATE COURT, KOLLAM-III DATED
12.11.2025
