Crl.R.P.No.354/2025 1 2025:KER:30192 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH TUESDAY, THE 8TH DAY OF APRIL 2025 / 18TH CHAITHRA, 1947 CRL.REV.PET NO. 354 OF 2025 AGAINST THE ORDER DATED 05.02.2025 IN CC NO.363 OF 2017 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II,HOSDRUG REVISION PETITIONERS/ACCUSED : 1 BABU@ KOTTADKA BABU @ V.V.RAMACHANDRAN, AGED 74 YEARS S/O.CHANDU, KARINDALAM, PADANAKKAD POST, HOSDURG TALUK, KASARAGOD DISTRICT-, PIN - 671315 2 GOPI@ KURIKKAL GOPI, AGED 55 YEARS S/O.NARAYANA, RESIDING AT PADINHATAMKOVVAL, NEELESHWARAM P.O, HOSDURG TALUK, KASARAGOD DISTRICT-, PIN - 671314 3 BALAN @ BANGALAM BALAN, AGED 64 YEARS RAMAN KARNVAR, R/AT BANGALAM, MADIKAI P.O, HOSDURG TALUK, KASARAGOD DISTRICT-, PIN - 671314 4 SHASHI KARVACHERRY @ K.SASIDHARAN, AGED 57 YEARS S/O. KORAN, R/AT KARUVACHERY, NEELESHWARAM P.O, HOSDURG TALUK, KASARAGOD DISTRICT-, PIN - 671314 5 K.K. KUMARAN, AGED 67 YEARS S/O.KUNHIRAMAN, MANNAMPURAM, NILESHWAR.P.O, KASARAGOD, PIN - 671314 BY ADV K.V.SREE VINAYAKAN Crl.R.P.No.354/2025 2 2025:KER:30192 RESPONDENTS/STATE & COMPLAINANT: 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2 ABDUL SALAM, S/O. E.ABDUL RAHIMAN, MUMTHAZ MAHAL, KARUVACHERRY, NILESHWARAM, HOSDURG TALUK, KASARAGOD DISTRICT, PIN - 671315 SRI.M.P. PRASANTH, PP THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 08.04.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.R.P.No.354/2025 3 2025:KER:30192 ORDER Annexure A8 order passed by the Judicial Magistrate of First Class-II, Hosdurg (for short, the trial court) dismissing the petition filed by the petitioners for discharge is under challenge in this criminal revision petition. 2. I have heard the learned counsel for the petitioners and the learned Public Prosecutor. 3. When the case came up for hearing the last time, the learned Prosecutor submitted that inasmuch as the case is one that arose out of a private complaint, the trial court went wrong in invoking Section 239 of Cr.P.C instead of Section 245 of Cr.P.C. The learned Prosecutor further submitted that even the provision under Section 245 of Cr.P.C could not have been invoked, since the evidence under Section 244 of Cr.P.C was not taken. A report was called for from the learned Magistrate as to whether evidence under Section 244 of Cr.P.C was recorded. The learned Magistrate reported that the evidence under Section 244 of Cr.P.C is not yet recorded. Hence, the impugned order is against the statutory provision. Accordingly, it is set aside. The petitioners are granted liberty to move a fresh Crl.R.P.No.354/2025 4 2025:KER:30192 petition for discharge under Section Section 268 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short, BNSS, 2023), once the evidence under Section 244 of Cr.P.C (Section 267 of BNSS, 2023) is recorded. If a petition is filed under Section 268 of BNSS, 2023, the learned Magistrate shall dispose of the same untramelled by any of the observations in the impugned order. The revision petition is disposed of. Sd/- DR. KAUSER EDAPPAGATH JUDGE kp Crl.R.P.No.354/2025 5 2025:KER:30192 APPENDIX OF CRL.REV.PET 354/2025 PETITIONER ANNEXURES Annexure A1 TRUE COPY OF THE PRIVATE COMPLAINT FILED BY THE COMPLAINANT AS CMP 2699/2016 ON THE FILES OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II, HOSDURG Annexure A2 TRUE COPY OF THE PETITION IN IA NO. 49/2014 IN SM 2110/1976 ON THE FILE OF LAND TRIBUNAL, NILESHWAR ALONG WITH TYPED COPY Annexure A3 TRUE COPY OF THE REPORT OF VILLAGE OFFICER ALONG WITH PLAN DATED 20-06- 2014 Annexure A4 TRUE COPY OF ORDER OF LAND TRIBUNAL, NILESHWAR DATED 24-07-2014 ALONG WITH TYPED COPY Annexure A5 TRUE COPY OF ORDER DATED 17-10-2018 IN OP(C) 230/2015 Annexure A6 TRUE COPY OF ORDER IN CRL.M.C.8247/2017 DATED 07-08-202 Annexure A7 TRUE COPY OF THE JUDGMENT IN O.S.NO. 353/2018DATED 24-03-2023 ON THE FILE OF MUNSIFF’S COURT, HOSDURG Annexure A8 CERTIFIED COPY OF THE ORDER IN CMP 5675/2024 IN CC 363/2017 DATED 05-02- 2025 ON THE FILE OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II, HOSDURG