Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS WEDNESDAY, THE 26TH DAY OF JULY 2023 / 4TH SRAVANA, 1945 CRL.MP.NO.1407/2023 IN C.C.NO. 177/2021 OF CHIEF JUDICIAL MAGISTRATE, THIRUVANANTHAPURAM REVISION PETITIONER/ PETITIONER/ 2ND ACCUSED : JOHN FREDERICK, AGED 37 YEARS, S/O SNEBY DARMAYYAN, SUSAN HOME, KAMALA GARDEN, AKG NAGAR ROAD, PEROORKADA, THIRUVANANTHAPURAM, PIN - 695 005 BY ADVS. R.SUNIL KUMAR A.SALINI LAL NIKITHA SURESH ADITYA DEV RESPONDENT/ COUNTER PETITIONER/ STATE : STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, MUSEUM POLICE STATION, THIRUVANANTHAPURAM THROUGH PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM, PIN - 682 031 BY SRI.C.N.PRABHAKARAN, PUBLIC PROSECUTOR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 26.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING :
BECHU KURIAN THOMAS, J.
=-=-=-=-=-=-=-=-=-=-=-=-=-= Crl.R.P.No.770 of 2023 =-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 26th day of July, 2023
ORDER
Revision petitioner is the 2 nd accused in C.C.No.177 of 2021 on the files of the Chief Judicial Magistrate's Court,
Thiruvananthapuram. On 11.10.2021, Crime No.1212 of 2021 of Museum Police Station, Thiruvananthapuram was registered by the defacto complainant alleging offences punishable under Sections 294(b), 323, 341 and 506 r/w Section 34 of the Indian Penal Code, 1860 apart from Section 118(a) of the Kerala Police Act, 2011. Pursuant to investigation, the police filed a final report arraying two persons as accused. It is alleged that the accused who were under the influence of alcohol had, on 11.10.2021, assaulted the defacto complainant and abused him for having questioned the repeated honkings from behind by the accused and thereby committed the offences alleged.
2. Crl.M.P.No.1407 of 2023 was filed by the revision petitioner
before the Chief Judicial Magistrate seeking discharge under Section 239 of the Code of Criminal Procedure, 1973. It was pleaded that there was no material in the final report revealing any offence against the 2nd accused and that there is not even any medical evidence to support the alleged hurt caused to the alleged victim and in the absence of any injury sustained by the alleged victim, the 2nd accused ought to be discharged.
3. By order dated 19.06.2023, the learned Chief Judicial Magistrate dismissed the application for discharge after finding that the materials collected by the investigation prima facie reveal the
offences alleged against both accused. It was also held by the learned Chief Judicial Magistrate that the defacto complainant had no case that he had sought any medical treatment for the injury sustained by him and therefore, the absence of a wound certificate will not affect the merits of the prosecution case and on that basis the discharge petition was dismissed.
4. I have heard Sri.R.Sunil Kumar, the learned counsel for the revision petitioner as well as Sri.C.N.Prabhakaran, the learned Public Prosecutor.
5. The 2nd accused in C.C.No.177 of 2021 on the files of the Chief Judicial Magistrate's Court, Thiruvananthapuram seeks
discharge from the criminal proceeding. Though the prosecution alleges that the two accused had assaulted the defacto complainant when he questioned the repeated honkings from behind his car and had even been abused by the accused, the revision petitioner contends that there is nothing on record to implicate him as an accused.
6. On a perusal of the final report, it is evident that the
prosecution has alleged that the accused, which includes both of them, had abused the defacto complainant and even assaulted him. Though specific overt acts against each of the two accused have not been mentioned, the prosecution alleges that both accused had assaulted and abused the defacto complainant. At this stage of a criminal proceeding, it is not necessary that the specific overt acts against each person must find a place in the final report. Whether any overt acts were done by both accused or only by one of the accused is a matter which can be determined only after trial. Therefore the contention that no specific overt act has been alleged against the petitioner is of no avail, at this juncture.
7. The further contention on behalf of the 2nd accused that the
wound certificate had not been produced by the prosecution for the purpose of proving any injury having been occasioned to the defacto complainant is only to be rejected. It is elementary that for the purpose of causing an injury as contemplated under Section 323 of IPC, a physical wound of a particular measurement is not essential. Hurt as defined under Section 319 includes bodily pain as well. The offence alleged against the revision petitioner includes Section 323 which is the punishment for voluntarily causing hurt. The admitted case of the prosecution is that the defacto complainant had not underwent any medical treatment and hence the absence of a wound certificate would not advance the cause of the accused,
atleast at this juncture. Hence the contention of the revision petitioner that the absence of wound certificate cannot result in the accused being found guilty is of no avail.
8. Apart from the above, the nature of allegations and the
circumstances arising in the case considered in the light of the final report reveals that the guilt or otherwise of the accused can be proved only through the trial of the case. Hence, this Court is of the view that the impugned order of the learned Chief Judicial Magistrate is proper and regular and no case has made out for interference under Section 397 of the Cr.P.C.
Therefore, the criminal revision petition fails and is dismissed. Sd/- BECHU KURIAN THOMAS, JUDGE RKM APPENDIX OF CRL.REV.PET 770/2023 REVISION PETITIONER'S ANNEXURES : Annexure 1 TRUE COPY OF THE FIR ALONG WITH THE FINAL REPORT IN CC 177/2021 PENDING BEFORE THE HONOURABLE CHIEF JUDICIAL MAGISTRATE COURT, THIRUVANANTHAPURAM Annexure 2 CERTIFIED COPY OF THE ORDER IN CRL MP THE HONOURABLE CHIEF JUDICIAL MAGISTRATE COURT, THIRUVANANTHAPURAM