IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 18TH MAY 2010 / 28TH VAISAKHA 1932 Crl.MC.No. 917 of 2010() ------------------------ CP.26/2006 of JUDL. MAGISTRATE OF FIRST CLASS COURT-III, TRIVANDRUM .................... PETITIONER(S): ACCUSED ------------------------------------------ SREEKUMAR.A., S/O.AYYAPPAN, CHALACHAKKARA PUTHEN VEEDU, N.R.R.A.123, VATTIYOORKAVU, THIRUVANANTHAPURAM. BY ADV. SRI.R.ANIL RESPONDENT(S): COMPLAINANT --------------------------------------------------- STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.C.S.HRITHWICK THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 18/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = Crl.M.C..No.917 of 2010 = = = = = = = = = = = = = = Dated this the 18 th day of May, 2010 ORDER Petitioner, who is the sole accused in Crime No.780/2005 of Kazhakkoottam Police station and now pending before the J.F.C.M- III, Thiruvananthapuram as C.P.No.26 of 2006 for offences punishable under Sections 279,337,338 and 304 IPC seeks to quash Annexure A1 FIR and AI(a) final report. 2. Admittedly non-bailable warrants of arrest are pending against the petitioner from J.F.C.M-III, Thiruvananthapuram in the above C.P.case. 3. According to the petitioner, incorporation of Section 304 IPC is totally uncalled for since the requisite intention or knowledge even according to the prosecution records were totally absent. 4. Since the Magistrate has already taken cognizance of the offences punishable under Sections 279,337,338 and 304 IPC and has taken the case on the file as C.P.No.26 of 2006, it is not possible for the Magistrate to go back to the pre-cognizance stage and delete the offence punishable under Section 304 IPC from Crl. M.C. No. 917 of 2010 2 cognizance. The remedy of the petitioner is to make his submissions before the Court of Session after committal and in case the Sessions Court is convinced that as against Section 304 IPC, the offence which is made out is only one punishable under Section 304A IPC, that Court can exercise the power under Section 228(1)(a) Cr.P.C and transfer the case either to the CJM or any Judicial Magistrate of First Class for trial. That court can also discharge the petitioner if the prosecution records so warrant. This Crl.M.C is accordingly disposed of permitting the petitioner to surrender before the Magistrate within two weeks from today and apply for regular bail. In case the petitioner does so, the learned Magistrate shall release him on bail on appropriate conditions. It shall be open to the petitioner to argue before the Sessions Court after committal that Section 304 IPC is not made out from the prosecution records. It shall be open to the petitioner to argue for a discharge or in the alternative to argue that as against Section 304 IPC the offence which is made out is only one punishable under Section 304 A IPC. Dated this the 18 th day of May, 2010. V. RAMKUMAR, JUDGE sj