High Court Kerala High Court

M.D. Thomas vs Omana on 17 July, 2009

Kerala High Court
M.D. Thomas vs Omana on 17 July, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.Rev.Pet.No. 616 of 2009()


1. M.D. THOMAS, MANAGER,
                      ...  Petitioner

                        Vs



1. OMANA, W/O. PUTHOOR KURIAKOSE,
                       ...       Respondent

2. MRS.MARY, W/O. LATE CHIRIYNAKANDATH

3. JAISON, S/O. CHIRAYANKANDATH

4. JOHNSON, S/O. CHIRIYNAKANDATH

5. STATE OF KERALA, REP. BY

                For Petitioner  :SRI.T.G.RAJENDRAN

                For Respondent  :PUBLIC PROSECUTOR

The Hon'ble MR. Justice THOMAS P.JOSEPH

 Dated :17/07/2009

 O R D E R
                          THOMAS P.JOSEPH, J.
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                            CRL. R.P. NO.616 2009
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                    Dated this the 17th    day of July, 2009

                                   O R D E R

————–

This revision is directed against order dated 15.11.2008 as per

which learned Judicial First Class Magistrate, Chavakkad has taken

cognizance against petitioner as well for offences punishable under

Sections 463, 467 and 468 read with 34 of the Indian Penal Code (for

short, “the IPC”). According to respondent No.1, her father had availed

a locker facility in the South Indian Bank of which petitioner (accused

No.4) is the Manager, for the purpose of keeping gold ornaments in

safe custody and after death of her father on 25.7.2006 a

nomination paper was forged by accused Nos.1 to 3 with the

connivance and sharing common intention with the petitioner as if

the nomination was made by the father before his death in the name

of mother of respondent No.1. It is accordingly that petitioner was

also sought to be impleaded for offences as above stated. It is seen

from the order that on a prior occasion without conducting enquiry

under Sec.202 of the Criminal Procedure Code (for short,”the Code”)

learned magistrate “dismissed” the complaint under Sec.203 of the

Code. That dismissal was challenged by respondent No.1 in this Court

in Crl.R.P. No.116 of 2008. Learned counsel for petitioner submitted

CRL. R.P. No.616 of 2009

-: 2 :-

that petitioner was not given notice of that proceeding. On

26.5.2008 this Court set aside the dismissal of the complaint one of

the reasons being that under Sec.203 of the Code a dismissal is

contemplated only after conducting enquiry under Sec.202 of the

Code. While remitting the complaint to the court below it was

directed that learned magistrate shall proceed in accordance with law.

Later, enquiry was conducted under Sec.202 of the Code and as per

the impugned order cognisance was taken as aforesaid. Petitioner

states that on the materials on record there was no scope for taking

cognisance against him and therefore requests this Court to interfere

with the order to the extent it concerned him. Learned counsel for

respondent No.1 submitted that there are sufficient materials available

on record to take cognisance against petitioner also.

2. At this stage it is not necessary to go into the question

whether sufficient materials are produced by respondent No.1 as

regards the alleged involvement of petitioner. Since offences under

Secs.463, 467 and 468 of the IPC are attributed against petitioner and

other accused persons learned magistrate has to follow the procedure

for trial of warrant cases instituted otherwise than on police report.

That means petitioner gets an opportunity to seek his discharge under

CRL. R.P. No.616 of 2009

-: 3 :-

sub-sec.(1) or (2) of Sec.245 of the Code. It is open to the petitioner

to avail that opportunity as stated therein. Learned counsel submits

that in that case petitioner may be permitted to appear through

counsel in the court below until the court decides to frame charge

against petitioner. Having regard to the facts and circumstances of

the case I find no reason to refuse that prayer.

Resultantly, this revision petition fails. It is dismissed making it

clear that it will be open to the petitioner to seek his discharge if

circumstances warranted invoking sub-sec.(1) or (2) of Sec.245 of the

Code. Petitioner is permitted to appear in the court below through

counsel until framing of charge, if any.

THOMAS P.JOSEPH, JUDGE.

vsv