IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 20TH NOVEMBER 2008 / 29TH KARTHIKA 1930 Crl.MC.No. 4334 of 2008() ------------------------- CP.136/2008 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KATTAKADA .................... PETITIONER(S): IST ACCUSED -------------------------- SHINE DAS, AGED 24 YEARS, S/O.NJANA DAS, 'DAS NIVAS', PANGODE, MELE ANTHIYOORKONAM, KOLLODU P.O., THIRUVANANTHAPURAM. BY ADV. SRI.BIJU BALAKRISHNAN RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, MALAYINKEEZH POLICE STATION, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SRI.GIKKU JACOB THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 20/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J. ---------------------- Crl.M.C.No.4334 of 2008 ---------------------------------------- Dated this the 20th day of November 2008 O R D E R The petitioner along with three others face indictment in a prosecution for offences punishable under Section 323,324 and 308 read with 34 I.P.C. Investigation is complete. Final report has already been filed. Committal proceedings has been registered. The petitioner has, at this stage, come to this court with the short grievance that inclusion of the allegation under Section 308 I.P.C is made in the F.I.R and in the final report not fairly and justly; but on account of mala fide reasons. Even if the factual allegations were accepted in toto and considered objectively and dispassionately, there is absolutely no justification to raise the allegation under Section 308 I.P.C. That allegation is raised solely for the purpose of vexing and harassing the petitioner. This is being done succumbing to the influence wielded by the de facto complainant, laments the learned counsel for the petitioner. 2. Notice was given to the learned Public Prosecutor. The learned Public Prosecutor was requested to explain whether there is any justification in the facts and circumstances of this Crl.M.C.No.4334/08 2 case to include the allegation under Section 308 I.P.C in the F.I.R as also in the final report. 3. The case diary has been placed before this court by the learned Public Prosecutor. The learned Public Prosecutor concedes that the allegation is only that in the course of an incident between the accused and CWs 2 and 3, the de facto complainant had intervened and consequently there was a dispute between the de facto complainant and the accused persons. In the course of that incident, he was allegedly assaulted with hands, legs etc. There is a further allegation that a weapon - kuruvadi (a small wooden stick) was used for attacking the de facto complainant. The learned Public Prosecutor fairly accepts that the attack had not left behind any external injuries and this fact is evident from the wound certificate relied on. The learned Public Prosecutor does not make any significant concession; but only submits that appropriate orders may be passed. 4. I have gone through the entire materials available. The conclusion appears to be inescapable in the facts and circumstances of this case that the allegation under Section 308 Crl.M.C.No.4334/08 3 I.P.C has been recklessly included in the F.I.R and in the final report. The allegation under Section 308 I.P.C deserves to be quashed invoking the extraordinary inherent jurisdiction under Section 482 Cr.P.C. Refusal to invoke such jurisdiction in aid of justice would amount to abdication of the extraordinary inherent jurisdiction, I am satisfied. In coming to this conclusion, I have taken note of the totality of circumstances available in this case. It would be traversity of justice to compel the petitioner and the co-accused to face trial before the court of Session. It would be contumacious and irresponsible wastage of time of the Sessions Court also, I am satisfied. 5. In the result, a) This Crl.M.C is allowed. b) The charge raised in the final report against the petitioner and the co-accused under Section 308 I.P.C is hereby quashed. 6. The learned Magistrate shall now re-register the proceedings as a calendar case and proceed in accordance with law. (R.BASANT, JUDGE) jsr Crl.M.C.No.4334/08 4 Crl.M.C.No.4334/08 5 R.BASANT, J. CRL.M.C.No. of 2008 ORDER 09/07/2008