Kerala High Court
Accused vs The State Of Kerala on 11 May, 2010
Author: C.T.Ravikumar
Bench: C.T.Ravikumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
THURSDAY, THE 19TH DAY OF JULY 2012/28TH ASHADHA 1934
Crl.Rev.Pet.No.1619 of 2012 ()
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AGAINST ORDER IN CMP 2780/12 IN CC.189/2010 of J.M.F.C-I, ATTINGAL
REVISION PETITIONER(S):ACCUSED
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1. RAJESH, AGED 25 YEARS
S/O.SUDHARSANAN BABU, PANDIYAMMOODU VEEDU
THIRUVALLAM, EDAYAR DESOM, MUTTATHARA VILLAGE, NOW
RESIDING AT ATTUVARAMBU VEEDU, EDAYAR, THIRUVALLAM,
THIRUVANANTHAPURAM
2. SUBHASH, AGED 40 YEARS
S/O.VASU PILLAI, SURESH BHAVAN, POUDIKONAM WARD
CHEMPAZHANTHI VILLAGE, NOW RESIDING AT PANDIYANMOODU
VEEDU, EDAYAR, THIRUVALLAM, THIRUVANANTHAPURAM
3. SULOCHANA, AGED 77 YEARS
D/O.JANAKI, POIKAVILA VEEDU, KILIMOKKU, AZHOOR DESOM
AZHOOR VILLAGE, NOW RESIDING AT POIKAVILA VEEDU
AZOOR, CHIRAYINKEEZHU, THIRUVANANTHAPURAM
BY ADVS.SMT.K.KUSUMAM
SMT.N.SHAMNA
RESPONDENTS/COMPLAINANT(S)& DE FACTO COMPLAINANT:
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1. THE STATE OF KERALA
REP.BY PUBLIC PROSECUTOR HIGH COURT OF KERALA
ERNAKULAM
2. SINDHU, AGED 45 YEARS
D/O.SANTHAKUMARY, RESIDING AT SANTHA NIVAS
KUTTIKKADU LANE, CHIRAYINKEEZHU DESOM, SARKARA
VILLAGE, THIRUVANANTHAPURAM- 695304
Crl.Rev.Pet.No.1619 of 2012 () 2
3. KIRAN @ KIRAN KUMAR
SANTHA NIVAS, CHIRAYINKEEZHU,
THIRUVANANTHAPURAM-695304
BY PUBLIC PROSECUTOR SRI.BIJU MEENATTOOR-R1
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
ADMISSION ON 19-07-2012, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
CRL.R.P.No.1619/2012
APPENDIX
ANNEXURE A1:THE CERTIFIED COPY OF CHARGE IN CC 189/2010 ON THE FILE OF
THE JUDICIAL 1ST CLASS MAGISTRATE COURT-1, ATTINGAL.
ANNEXURE A2: THE CERTIFIED COPY OF FIR 415/2009 OF THE CHIRAYINKEEZHU
POLICE STATION.
ANNEXURE A3: THE CERTIFIED COPY OF THE COMMON COMPROMISE PETITION
FILED BEFORE THE HON'BLE FAMILY COURT, KOLLAM.
ANNEXURE A4:CERTIFIED COPY OF RECEIPT ISSUED BY THE DEFACTO COMPLAINANT
TO HER HUSBAND ASOKAN, DATED 11.5.2010.
ANNEXURE A5: THE CERTIFIED COPY OF THE JUDGMENT PASSED BY THE HON'BLE
FAMILY COURT, NEDUMANGAD IN O.P.619/2010.
ANNEXURE-A6: THE CERTIFIED COPY OF ORDER IN CRL.M.C.NO.3831/2011 PASSED
BY THE HON'BLE HIGH COURT OF KERALA DATED 13.12.2011.
ANNEXURE-A7:THE TRUE COPY OF DISCHARGE PETITION FILED BY THE
PETITIONERS AS C.M.P.NO.2780/2012 IN CC.189/2010 BEFORE THE
JUDICIAL FIRST CLASS MAGISTRATE COURT-I, ATTINGAL.
ANNEXURE A8: THE CERTIFIED COPY OF THE ORDER IN CMP.2780/2012 IN
CC.189/2010 PASSED BY THE HON'BLE JUDICIAL FIRST CLASS
MAGISTRATE COURT-I, ATTINGAL DATED 4.5.2012.
RESPONDENTS' ANNEXURES:NIL
//TRUE COPY//
TKS P.S.TO JUDGE
C.T.RAVIKUMAR, J.
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Crl.R.P.No.1619 of 2012
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Dated 19th July, 2012
ORDER
This revision petition is directed against an order dated 4.5.2012 in C.M.P.No.2780 of 2012 in C.C.No.189 of 2010 of the Judicial First Class Magistrate Court-I, Attingal. The petitioners who are accused 1 to 3 in C.C.No.189 of 2010 stand indicted for offences punishable under sections 341, 323, 324, 499 & 427 read with section 34 of the Indian Penal Code. The learned Magistrate has taken cognizance of the offences against the petitioners herein based on the police report under section 173(2) of the Code of Criminal Procedure. Subsequently, the petitioners filed C.M.P.No.2780 of 2012 in C.C.No.189 of 2010 seeking discharge under section 245(2) Cr.P.C. Essentially, the petitioners relied on Annexure A3 which is a compromise whereon Sindhu, the second respondent herein, her husband Asokan and their daughter Neethu and one Sanju are the signatories. That agreement was duly taken note of by the Family Court, Kollam for passing the decree in O.S.No.77 of 2006, it is contended. Later, as per judgment in O.P.No.619 of 2010 the marriage between the above mentioned Asokan and Sindhu, solemnized on 7.4.1983 was dissolved by a decree of divorce by mutual consent under section 13B of the Hindu Marriage Act. It is the contention of the Crl.R.P.No.1619/2012 2 petitioners that in terms of Annexure A3 all the criminal cases then pending between the members of families of the said couple are to be settled. It is contended that the case on hand is a criminal case wherein the said Sindhu's sister's son Kiran @ Kiran Kumar, the 3rd respondent, is the de facto complainant and therefore, the 2nd respondent or the 3rd respondent should have taken steps to compound the offence against the petitioners by virtue of Annexure-A3. The petitioners in the circumstances filed Annexure-A7 petition in C.C.No.189 of 2010 for discharge under section 245(2) Cr.P.C. The learned counsel for the petitioners drew my attention to clause No.7 in Annexure- A3 which reads thus:-
"
settlement settle ".
It is contended that in view of the said clause which was duly taken note of by the Family Court, Kollam while passing the decree in O.S.No.77 of 2006 the petitioners who were relatives of the husband viz., Asokan are entitled to get discharge. The learned Magistrate after hearing the learned Public Prosecutor dismissed Annexure-A7 petition as per Crl.R.P.No.1619/2012 3 Annexure-A8 order. This revision petition is filed in the said circumstances.
2. Before looking into the legality of Annexure-A8 order, certain indisputable facts have to be taken into consideration. The defacto complainant in C.C.No.189 of 2010 is not the 2nd respondent, the wife of Asokan. Evidently, the complaint was lodged by one Kiran @ Kiran Kumar/the third respondent herein who is the son of the sister of the second respondent. The third respondent was not a party to Annexure-A3 agreement. So long as he was not a party to Annexure-A3 agreement he cannot legally be compelled to take action to compound the offence, as contended by the petitioners. In fact, there is no question of withdrawing the complaint by the defacto complainant. On his complaint the police conducted investigation and filed a final report in terms of section 173(2) Cr.P.C. The learned Magistrate took cognizance of the final report filed by the police and therefore, it is not a case where the trial court took cognizance on a private complaint. Above all, as rightly pointed out by the learned Magistrate non-compoundable offences are also involved in this case. The defacto complainant who can compound the offences in terms of the provisions under section Crl.R.P.No.1619/2012 4 320 Cr.P.C. has not come before this Court or before the court below for compounding the offences. Obviously, the application was filed by the accused/the petitioners herein to discharge them under section 245(2) Cr.P.C. Therefore, the question which was to be considered by the learned Magistrate was only with respect to the entitlement of the petitioners to get discharge in terms of the provisions under section 245(2) Cr.P.C. While considering an application for discharge under section 245(2) Cr.P.C. the court is not supposed to weigh the evidence or consider the pros and cons of the case. In short, a meticulous consideration of the materials produced is not permissible at that stage. When once the charge against the accused is found to be groundless he can be discharged at any previous stage than the stage of Section 245(1) Cr.P.C. The question is when can it be said to be groundless against an accused. As rightly observed by the court below a charge can be said to be groundless if the evidence is such that no conviction could be rested on it, or where the materials are such that even if unrebutted, they would make out no case whatsoever. There is no case for the petitioners herein that the final report laid in this case does not disclose the offences alleged against them. At the time of taking cognizance the court takes cognizance only of an offence and not the offenders. It is Crl.R.P.No.1619/2012 5 only at the time of framing charges the role of the accused/accused persons would be looked into and as already noted, it is not the case of the petitioners that final report on which the court took cognizance did not disclose any of the offences referred above. The case of the petitioners is founded solely on Annexure-A3 agreement executed between Sindhu and Ashokan who are the parties in O.S.No.77 of 2006 before the Family Court, Kollam. When once it is found that the charge against the accused persons cannot be said to be groundless there can be no question of discharging the accused persons invoking the provisions under section 245(2) Cr.P.C. In that view of the matter, I do not find any error or illegality or infirmity in the impugned order passed by the learned Magistrate in C.M.P.No.2780 of 2012 in C.C.No.189 of 2010. Therefore, this revision petition is liable to fail.
3. The learned counsel for the petitioners, in the said circumstances, seeks for a direction to the learned Magistrate to grant exemption to the petitioners from personal appearance before the trial court. As far as the third petitioner is concerned, evidently she is a septuagenarian. The learned counsel submits that on account of physical ailment she may not be in a position to make personal appearance Crl.R.P.No.1619/2012 6 before the court. In the said circumstances, it will be open to the third petitioner to file an application before the learned Magistrate seeking for exemption from personal appearance. In case the third petitioner files such an application before the court below in C.C.No.189 of 2010 that shall be considered by the learned Magistrate in accordance with law and appropriate orders shall be passed taking into account all the relevant aspects. In the case of the other petitioners it will be open to them to move such application for the said purpose before the court below, if so advised.
The upshot of the above discussion is that this revision petition lacks merit and accordingly, it is dismissed subject to the above observation.
Sd/-
C.T.RAVIKUMAR Judge TKS