IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 3RD JANUARY 2008 / 13TH POUSHA 1929 Crl.MC.No. 36 of 2008() --------------------------- (CRIME NO. 65/2006 of HARIPPAD POLICE STATION) PETITIONER: ------------ SREEJITH, S/O SASIDHARAN PILLAI, AMBADY HOUSE, V WARD, CHIRAKKAL PANCHAYATH, KANNETTUKARA, CHIRAKKAL VILLAGE, KOLLAM TALUK. BY ADV. SRI.C.RAJENDRAN RESPONDENTS: COMPLAINANT ---------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SUB-INSPECTOR OF POLICE, HARIPPAD POLICE STATION THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. NALESH, S/O UNNICHEKKAN, THOTTAPARAMBIL, POTTA P.O., CHALAKKUDY, THRISSUR. BY ADV. SRI. K.S. SIVAKUMAR, PUBLIC PROSECUTOR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 03/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR , J. ================================ CRL.M.C. No.36 of 2008 ================================= Dated this the 3rd day of January, 2008. ORDER The petitioner, who is the 2nd accused and who was the driver of a car at the relevant time stands charge sheeted by the Sub Inspector of Police, Harippad Police Station in crime No. 65/2006 for an offence punishable under Section 304 IPC r/w Section 34 IPC. According to the petitioner, even going by the averments in the final report the offence which has been made out is only one punishable under Section 304 A IPC and not 304 IPC. He therefore seeks to quash the FIR as well as the charge sheet. 2. Merely because the police have charge sheeted the petitioner under Section 304 IPC, the Magistrate is not bound by the same if, as contended by the petitioner, on the materials before the court the offence which is made out is only one punishable under Section 304 A IPC. Hence, even before the Magistrate takes cognizance of the offence, the petitioner cannot seek a quashing of the FIR as well as the final report. The appropriate course for the petitioner is to surrender before the CRL. M.C. NO. 36/2008 : 2 : Magistrate and seek bail, in the course of which he can appraise the Magistrate that the offence which is really made out is only one punishable under Section 304 A IPC. 3. This M.C is accordingly disposed of permitting the petitioner to surrender before the Magistrate and file an application for regular bail within two weeks from today. The petitioner is also permitted to raise his contentions with regard to the aforesaid offences before the Magistrate while moving for enlargement on bail. In case the petitioner complies with the above condition, the Magistrate shall consider and dispose of the bail application preferably on the same day on which it is filed. V. RAMKUMAR, JUDGE. rv CRL. M.C. NO. 36/2008 : 3 :