IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 16TH JULY 2009 / 25TH ASHADHA 1931 Crl.MC.No. 2327 of 2009() ------------------------------------ CC.158/2004 of JUDL.MAGISTRATE OF FIRST CLASS COURT, MATTANNUR .................... PETITIONER(S): --------------------- K.P.PAVITHRAN, S/O.KUNHIRAMAN, AGED 51 YEARS, KUNNUMMEL HOUSE, KOLARI AMSOM, KALLOOR DESOM, KEECHERI.P.O., THALASSERY TALUK, KANNUR DISTRICT. BY ADV. MR.R.SURENDRAN RESPONDENT(S): ------------------------- 1. KUTTIALIPRATH IBRAHIM, S/O.AYISSU, AGED ABOUT 48 YEARS, BUSINESS, MUZHAKUNNU AMSOM, PALA DESOM, THALASSERY TALUK, KANNUR DISTRICT. 2. V.S.ACHUTHANANDAN, CHIEF EDITOR, DESABHIMANI DAILY, KANNUR, KANNUR DISTRICT. 3. P.KARUNAKARAN, PRINTER & PUBLISHER, DESABHIMANI DAILY, A.K.G.MEMORIAL PRINTING & PUBLISHING COMPANY (P) LTD., KANNUR. 4. V.S.ACHUTHANANDAN, EDITOR, DESABHIMANI DAILY, A.K.G.MEMORIAL PRINTING & PUBLISHING COMPANY (P) LTD., PALLIKKUNNU, KANNUR-670 004. BY THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 16/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.2327 of 2009 -------------------------- ORDER Petitioner is the complainant in C.C.No.158/2004 on the file of Judicial First Class Magistrate's Court, Mattannur. The complaint was filed alleging offence under Section 499/500 of Indian Penal Code against three accused. Under Annexure-A2 order in Crl.M.C.No.3830/2005, this Court quashed the case as against the second accused. Later, petitioner filed Annexure-A4 petition to implead the second respondent once again as an additional accused in his capacity as Editor. Under Annexure-A5 order that petition was dismissed for default. This petition is filed under Section 482 of Code of Criminal Procedure to quash that order. 2. Learned counsel appearing for the petitioner was heard. 3. Learned counsel submitted that the Magistrate should not have dismissed the petition CRMC 2327/09 2 for default and should have disposed it on merits and therefore, the order is to be quashed. 4. On hearing the learned counsel, I do not find any reason to interfere with Annexure-A5 order. The case is being tried as a warrant trial otherwise than on a police report. When the case as against the second accused already stands quashed, learned Magistrate can take cognizance against him thereafter only under Section 319 of Code of Criminal Procedure. To enable the Magistrate to take cognizance as against the second respondent and to proceed against him by impleading him as an additional accused, evidence should be let in before the Magistrate. Annexure-A4 petition was filed before letting any such evidence. Therefore, even if Annexure-A5 order is to be quashed, Annexure-A4 petition is not maintainable. Petition is dismissed. Dismissal of the petition will not affect the right of the Magistrate to proceed against the second respondent under Section CRMC 2327/09 3 319 of Code of Criminal Procedure at a later stage, if warranted. 16th July, 2009 (M.Sasidharan Nambiar, Judge) tkv