IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 21ST JUNE 2010 / 31ST JYAISTHA 1932 Crl.MC.No. 2135 of 2010() ------------------------- (AGAINST THE ORDER IN CRL.M.P.1691/2009 DTD.29/1/2010 IN C.C.No.36/2005 ON THE FILES OF J.F.C.M Court, OTTAPALAM) PETITIONERS/ACCUSED 1 & 2: --------------- 1. SEDHUMADHAVAN, S/O.BALAN EZHUTHASSAN, KAYARATTU VEEDU, P.O.THOTTAKKARA OTTAPALAM TALUK, PALAKKAD DISTRICT. 2. SANTHAKUMARI, W/O.SEDHUMADHAVAN KAYARATTU VEEDU, P.O.THOTTAKKARA OTTAPALAM TALUK, PALAKKAD DISTRICT. BY ADV. SRI.P.JAYARAM RESPONDENTS/COMPLAINANTS: --------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. 2. THE SUB INSPECTOR OF POLICE, OTTAPALAM POLICE STATION, P.O.OTTAPALAM-679 101, PALAKKAD DISTRICT. 3. KUTTAN, S/O.KRISHNAN, VETTUKATTIL HOUSE, P.O.THOTTAKKARA-679 102, OTTAPALAM TALUK, PALAKKAD DISTRICT. PUBLIC PROSECUTOR SHRI.C.S.HRITHIK THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 21/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.RAMKUMAR, J. ------------------------------------- Crl.M.C.No.2135 of 2010 -------------------------------------- Dated this the 21st day of June, 2010 ORDER Petitioners who are accused Nos.1 & 2 in Crime No.533/2004 of Ottapalam Police Station registered for offences punishable under Sections 448, 323, 324, 341, 326, 452, 294(b), 506(ii) read with Section 34 I.P.C. and now pending before the J.F.C.M., Ottapalam as C.C.No.36/2005 challenge Annexure-A5 order as per which the learned Magistrate has amended the earlier charge framed against the petitioners by incorporating an offence punishable under Section 326 I.P.C. as well. 2. As mentioned earlier, the F.I.R. included all the above offences including Section 326 I.P.C. But the police after conclusion of investigation, filed the final report incorporating offences punishable under Sections 324, 447, 294(b) & 323 read with Section 34 I.P.C. Presumably, going by the police report, the learned Magistrate framed the charge against the petitioners for offences punishable under Sections 324, 447, 294(b) & 323 read with Section 34 I.P.C. only. Thereafter the learned Assistant Public Prosecutor in charge of the case filed a report before the learned Magistrate to the effect that since the wound Crl.M.C.No.2135/2010 : 2 : certificate of the injured revealed a fracture, the offence under Section 326 I.P.C was also involved. It was acting on the said report that the court below passed Annexure A5 order as per which the charge was amended so as to include the offence punishable under Section 326 I.P.C. as well. 3. The law is well settled that the Court has to frame the charge by pursuing the records produced by the prosecution. Annexure A4 wound certificate produced by the Sub Inspector of Police along with Final Report did reveal a fracture. However, the court below omitted to take the same into account while framing the charge initially. As mentioned earlier the Court was evidently persuaded by the final report in which offence under Section 326 I.P.C. was omitted. The contention of the petitioners that during the stage of investigation the police had filed a report deleting the offence punishable under Section 326 I.P.C. from the F.I.R. is not a ground to hold that the Magistrate is bound by the said interim report or final report filed under Section 173(2) of the Code of Criminal Procedure. Even if the offence punishable under Section 326 I.P.C. was deleted by the Police, that does not preclude the Magistrate from incorporating the said offence if the prosecution records revealed Crl.M.C.No.2135/2010 : 3 : the commission of that offence. The reason which persuaded the investigating officer to file a report deleting Section 326 I.P.C. can hardly be a ground to persuade the Magistrate also to follow suit. Investigating officer might have been persuaded even by some ulterior motive to delete Section 326 I.P.C. But when the prosecution records prima facie revealed the commission of an offence under Section 326 I.P.C. the court below cannot be faulted for incorporating that offence also in the court charge which originally omitted to mention the said offence. Incorporating Section 326 I.P.C. in the court charge does not mean that the petitioner is convicted of the said offence. Notwithstanding the incorporation of said offence the prosecution will have to prove the commission of said offence and then alone can the petitioners be convicted of the said offence. I find no good reason to interfere with the Annexure A5 order. Hence, this Criminal M.C. is dismissed. V.RAMKUMAR, JUDGE skj