STATE OF KERALA Vs. SEBASTIAN

JUDGEMENT

(1.) THE State has filed this revision petition seeking to revise an order passed by the Judicial Magistrate of First Class, Cochin, discharging the accused-respondent in C. C. No 83 of 1979, after framing charges against him. The police after due investigation laid a charge-sheet against the respondent herein and two others alleging that they committed offences punishable under Sections 406, 477-A read, with Section 34 I. P. C. Copies of documents as contemplated under Section 207 Cr. P. C. were given to the accused persons. The Magistrate after due compliance of the provisions in Sees. 239 and 240 Cr. P. C. framed charges against the respondent under Sees. 406 and 477-A I. P. C. and discharged the other two accused. The charge was read over and explained to the respondent and thereafter the case was posted for hearing on 26-10-1979, on which day the respondent filed two petitions, one in English and another in Malayalam, praying that he may be discharged. The petition filed in English was taken on file as M. P. No, 3615 of 1979. while the other was taken on file as M. P. No. 3616 of 1979. On 6-11-1979, the petition filed by the respondent in English was disposed of by the following one word order. "allowed. " The other petition in Malayalam was disposed of on 2-11-1979 with a cryptic order "heard, Not opposed. Allowed.

(2.) THESE orders are strongly assailed on behalf of the State on the grounds that the orders passed by the Magistrate are illegal and without jurisdiction and that the statement made by him that the petition was not opposed is not true.

(3.) SHRI P. M. Namboodiri, Assistant Public Prosecutor, who was appearing in the case on behalf of the prosecution has filed an affidavit before this Court stating that he had opposed both the petitions before the Magistrate on grounds of "law and propriety," and that he pointed out that there cannot be a discharge when once charge is framed against the accused and that the criminal court has no power to review its own orders, and that the statement of the Magistrate in his order on M. P. No. 3616 of 1979 that the petition was not opposed is not true.