IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 12TH NOVEMBER 2009 / 21ST KARTHIKA 1931 Crl.MC.No. 2689 of 2009() ---------------------------------- CC.108/2006 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, NEYYATTINKARA .................................. PETITIONER(S): ACCUSED ------------------------------------ MATHUKUTTY, S/O.CHACKO, MUKULAMPLAVIL, PANNIVIZHA MURI, ADOOR VILLAGE, ADOOR TALUK, PATHANAMTHITTA DISTRICT. BY ADV. SRI.P.B.SAHASRANAMAN SRI.K.JAGADEESH SRI.T.S.HARIKUMAR RESPONDENT(S): COMPLAINANT AND STATE ------------------------------------ 1. STEPHEN, S/O.YESUDASAN, MYLACHAL ARUMURY VEETTIL, MYLACHAL, KEEZHARUR VILLAGE. 2. THE STATE OF KERALA, REPRESENTED BY THE ASSISTANT COMMISSIONER OF POLICE, CRIME DETACHMENT, THIRUVANANTHAPURAM CITY. PUBLIC PROSECUTOR MR. K.J. MUHAMMED ANSAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 12/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: SS M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No. 2689 OF 2009 =========================== Dated this the 12th day of November,2009 ORDER Petitioner is the accused and first respondent the complainant in C.C.108/2006 on the file of Judicial First Class Magistrate Court-I, Neyyattinkara. This petition is filed under section 482 of Code of Criminal Procedure to quash C.C.108/2006 taken cognizance by the learned Magistrate on Annexure A1 complaint filed by the first respondent. Crime 807/2003 of City Police Station, Thiruvananthapuram was registered in respect of the incident on which first respondent sustained injury on 11.5.2003 at about 12.30 p.m when a scooter hit on him while he was walking along the side of the road. Police has originally filed a final report finding that petitioner was riding the scooter. On a petition filed by the petitioner a further investigation was conducted with the permission of the learned Magistrate and Annexure A2 refer report was thereafter filed stating that petitioner was not the rider of the scooter and the scooter involved could not be detected. It is thereafter Annexure A1 protest Crl.M.C.2689/2009 2 complaint was filed. Before the learned Magistrate apart from the complainant three other witnesses were examined. Finding a prima facie case to be proceeded against the petitioner, summons was issued under section 204 Cr.P.C after taking cognizance of the offence. This petition is filed to quash the same. 2. Learned counsel appearing for the petitioner was heard. 3. Learned counsel argued that Annexure A2 refer report shows that the scooter of the petitioner was not involved in the incident and petitioner was not riding the scooter along that road at the time of the incident on that day and in the light of the report learned Magistrate was not justified in taking cognizance of the offence on the private complaint, when the very same witnesses were examined before the Magistrate. It was also argued that as is clear from the refer report, the witness who identified the number of the scooter and disclosed to others was an illiterate person and hence his evidence should not have been relied on. 4. Eventhough two of the witnesses apart from the complainant were the same witnesses who were questioned by the police while submitting Annexure A2 refer report, an additional witness was also examined before the learned Magistrate. The question whether those witnesses could be Crl.M.C.2689/2009 3 believed and whether as against their version, the contents of the refer report is to be accepted, cannot be decided in this petition. As petitioner is entitled to cross examine the witnesses at the time of their examination under section 244 of Code of Criminal Procedure, Petitioner is at liberty to raise the contentions after their examination, when petitioner is necessarily to be heard as provided under section 245 Cr.P.C. Petitioner is also at liberty to file an application for discharge under section 245 Cr.P.C and raise all the contentions raised herein. Learned counsel then submitted that a non bailable warrant is pending against him. It is upto the petitioner to surrender before the Magistrate and seek regular bail. If the petitioner surrenders and files an application for bail, Magistrate is expected to pass orders in the application without delay. I find no reason to believe that Magistrate is unaware of the provisions of law or the decisions of this court or the Apex Court or that Magistrate will not act in accordance with law. Hence no direction is warranted. Petition is disposed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006