IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN MONDAY, THE 9TH NOVEMBER 2009 / 18TH KARTHIKA 1931 Crl.Rev.Pet.No. 2465 of 2009() ------------------------------ CMP.2313/2006 of JDUL.MAGISTRATE OF FIRST CLASS, RAMANKARI .................... REVN. PETITIONER: ACCUSED ---------------------------- SINI LALAPPAN,AGED 36 YEARS W/O LALAPPAN, "SISHIRAM", KUTTAMANGALAM.P.O., ALAPPUZHA. BY ADV. SRI.B.PRAMOD SRI.GEORGE MATHEWS RESPONDENTS: COMPLAINANT & STATE ---------------------------------- 1. HARIDAS @ HARIKUTTAN, AJEESH BHAVAN, KUTTAMANGALAM.P.O., ALAPPUZHA. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.H.HAMZA ROWTHER FOR R1 SRI.V.K.PEERMOHAMED KHAN FOR R1 PUBLIC PROSECUTOR RRITHWIK THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 10/11/2009, THE COURT ON 09/11/2009 PASSED THE FOLLOWING: P.S.GOPINATHAN, J. ----------------------------- Crl.R.P No.2465 of 2009 ------------------------------ Dated this the 9th day of November, 2009. O R D E R The revision petitioner is the first accused in C.M.P.No.2313 of 2006 on the file of the Judicial Magistrate of the First Class, Ramankary. On 3.11.2006, the first respondent filed the above complaint alleging offences under Section 324, 326 and 302 IPC as against the revision petitioner. An offence under Section 304A of the Indian Penal Code was alleged as against the second accused. The allegations are that on 26.4.2002, at about 2.30 pm, the revision petitioner found that her daughter holding the penis of the deceased Aneesh Haridas who was aged 13 years and the elder son of the first respondent. According to the first respondent, the revision petitioner got angry and the boy was brutally assaulted and squeezed the penis and testicles of the boy. As a result, he sustained severe injury and he was admitted at the Community Health Centre, Vaikom, wherein the second respondent was working as Assistant Surgeon. It is alleged that the second accused didn’t take proper care in treating the victim and there is negligence on his side and as a result the child succumbed to the injuries sustained by squeezing the testicles. 2. It is alleged that on the basis of the statement given on Crl.R.P No.2465 of 2009 2 23.5.2002, Crime No.47 of 2002 was registered in the Pulikunnu Police Station and after investigation, a report was filed alleging offence under Section 447 and 323 of the Indian Penal Code. That report was taken and proceeded in C.C.No.23 of 2006. According to the revision petitioner, since the report in that case was filed beyond the period prescribed under Section 468 of the Code of Criminal Procedure, she was discharged. The first respondent would contend that he came to know that the final report was filed alleging offence under Section 447 and 423 IPC only when he obtained summons. It is with that allegation, the complaint was filed. 3. The learned Magistrate conducted a preliminary enquiry. As part of the enquiry, 17 witnesses were examined and Exts.C1 to C3 were marked. On analyzing the materials, the learned Magistrate arrived a conclusion that offences under Section 304 and 323 IPC are disclosed as against the revision petitioner. No offence was disclosed as against the second accused. Since the offence disclosed is triable by a Court of Session, the case was renumbered as C.P.No.24 of 2008 and process was issued to the revision petitioner. Assailing the legality, correctness and propriety of the above order issuing process, this revision petition was filed. 4. Now, it is submitted from either side that the case was Crl.R.P No.2465 of 2009 3 committed to the Court of Sessions and it is pending as S.C.No.102 of 2009 before the Additional Sessions Judge, Alappuzha. According to the learned counsel for the revision petitioner the evidence of PW15 would show that it was a case of death because of the gastroenteritis and that the death was not due to murder or culpable homicide as alleged by the first respondent and so no offence is made out to prosecute the revision petitioner for offence under Section 323 or 304 of Indian Penal Code and prayed quashing the order issuing process. 5. Having heard either side and taking into the account that the case is now pending before the Additional Sessions Judge, Alappuzha and that the charge is not framed, I find that it would be appropriate for the revision petitioner to urge his contentions before the Sessions Judge and to advance a plea for discharge. In the above circumstances, the revision petition is dismissed with liberty to the revision petitioner to urge his contentions and plea for discharge before the Additional Sessions Judge, Alappuzha. In the event, the revision petitioner files an application for exemption from personal appearance, the Additional Sessions Judge shall consider the same on merits. Sd/- P.S.GOPINATHAN JUDGE ab //True Copy//