IMPORTANT POINT
The court clarified that directing parties to file a discharge petition amounts to denial of quashment relief, and ordered reconsideration of the applicability of Section 354A against a female accused.

ORDER :

A. Badharudeen, J.

Order in CMP No.3958/2024 dated 05.10.2024 in CC No.544A/2019 on the files of Special Additional Chief Judicial Magistrate Court, Thrissur is under challenge in this revision petition filed under Section 438 and 442 of the Bharatiya Nagarik Suraksha Sanhita, 2023.

2. Heard the learned counsel for the revision petitioners and the learned Public Prosecutor appearing for respondents 1 and 2 on admission.

3. In this matter, the prosecution filed Final Report alleging commission of offences punishable under Sections 354A, 294(b), 506, 509 read with Section 34 of the Indian Penal Code, 1860 (for short 'the IPC') as well as under Section 120(o) of the Kerala Police Act, 2011 (for short 'the K.P.Act' hereafter).

4. The learned counsel for the revision petitioners submitted that earlier the petitioners herein had filed Crl.M.C. 112/2019 before this Court and this Court disposed of the same as on 13.08.2024 with liberty to the petitioners to file discharge petition before the trial court raising the contentions raised in the Crl.M.C. Thereafter, the petitioners filed CMP No.3958/2024 before the Magistrate Court, seeking discharge, but the learned Magistrate after addressing the plea of discharge, by a considered order, dismissed the application finding that prima facie, case is made out against the accused to go for trial for the offences under Sections 354 A(1) (iv), 506, 509 read with Section 34 of IPC and under Section 120(o) of K.P.Act. At the same time the petitioners were discharged for the offence under Section 294 (b) read with Section 34 of IPC. According to the learned counsel for the petitioners, finding of the Magistrate while dismissing the discharge petition is erroneous and the same is liable to be interfered. It is argued that offence under Section 354-A of IPC would not get attracted against a woman. The said aspect is ignored by the trial court.

5. The learned Public Prosecutor while opposing interference of the order disallowing discharge, vehemently arugued that while disposing of Crl.M.C.No.112/2019 as per order dated 13.08.2024, this Court allowed the petitioners to file a discharge petition before the trial court and such an order was passed because this Court found that on merits that quashment sought for in the Crl.M.C. could not be allowed. Thereafter, the learned Magistrate after addressing the contentions raised by the petitioners at length, disposed the discharge application and the same is perfectly in order and the same does not require any interference.

6. Repelling the contentions raised by the learned Public Prosecutor, the learned counsel for the petitioners submitted that this court not either allowed or disallowed the prayer for quashment and there is no finding in the order regarding the same.

7. Adverting to the rival arguments the questions arise for consideration are:

1) When this Court disposes a Criminal Miscellaneous Case seeking quashment of the criminal proceedings, without allowing the prayer and directing the petitioners to file discharge petition, whether it amounts to denial of the relief of quashment ?

and

2) Whether the order impugned is liable to be interfered?

8. In order to address the first question, I am inclined to extract the order of this Court in Crl.M.C.No.112/2019 dated 13.08.2024. Paragraph No.2 onwards of the order read as under:

“2. After hearing the learned counsel for the petitioners and the party respondent, I am of the considered opinion that the petitioners have to file appropriate discharge petition before the trial court raising the contentions raised in this Criminal Miscellaneous Case. If such a petition is filed, there can be a direction to the learned Magistrate to dispense with the presence of the petitioner till discharge petition is considered.

Therefore this Crl.M.C is disposed of with the following directions:

(a) The petitioners are free to file discharge petition before the trial court raising all the contentions raised in this Crl.M.C withi