IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE B.P.RAY WEDNESDAY, THE 24TH AUGUST 2011 / 2ND BHADRA 1933 Crl.MC.No. 746 of 2011(C) ------------------------ CC.730/2007 of JUDL.MAGISTRATE OF FIRST CLASS-I, KOLLAM .................... PETITIONER(S): --------------- 1. RAJAGOPAL(S.I OF POLICE,KARUNAGAPPALLY ON 06-05-97)S/O M.S.DAMODARAN, NEEK BHAVAN, NEAR NIRMITY KENDRA, PALLITHOTTAM, KOLLAM 2. VARADARAJAN,AGED 54 YEARS, S/O.VASUDEVAN,KARTHIKA EDAVANASSERY MURI, MYNAGAPPALLY VILLAGE, SASTHAMCOTTA TALUK,KOLLAM DISTRICT(S.I.OF POLICE,OACHIRA ON-06-05.1997) BY ADV. SRI.JOHNSON GOMEZ RESPONDENT(S): --------------- 1. THE STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM 2. JUDICIAL MAGISTRATE OF FIRST CLASS, COURT OF JUDICIAL MAGISTRATE OF FIRST CLASS, KARUNAGAPALLY, KOLLAM DISTRICT BY PUBLIC PROSECUTOR SRI. B. JAYASURYA. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 24/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No. 746 of 2011 APPENDIX: PETITIONERS' ANNEXURES: ANNEXURE A1: TRUE COPY OF THE COMPLAINT MADE BY JFCM, KARUNAGAPPALLY. ANNEXURE A2: TRUE COPY OF THE CMP No.10236/2010 FILED BY THE PETITIONERS BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT I, KOLLAM. ANNEXURE A3: TRUE COPY OF THE PETITION DATED 5.3.2011 FILED BY THE PETITIONERS IN CC No.730/2007 ON THE FILE OF JUDICIAL MAGISTRATE OF FIRST CLASS – I, KOLLAM. ANNEXURE A4: TRUE COPY OF THE ORDER DATED 1.10.2010 IN CMP No.10236/2010 IN CC No.730/2007. RESPONDENT'S EXHIBITS: NIL. TRUE COPY P.A. TO JUDGE. Kp/ B.P.RAY, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.No.746 OF 2011 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 24th day of August, 2011 ORDER Heard learned counsel for the petitioners and the learned Public Prosecutor. 2. Petitioners are the accused Nos.3 and 4 in C.C.730/2007 on the file of the Judicial First Class Magistrate Court I, Kollam. Annexure A1 complaint was filed under Section 340(1)(b) of the Criminal Procedure Code by the second respondent/ Judicial First Class Magistrate Court, Karunagappally alleging commission of offences punishable under Section 466 read with Section 34 and Section 109 of Indian Penal Code. Learned counsel for the petitioners submit that Annexure A1 complaint has been filed by the second respondent without conducting a preliminary enquiry as contemplated under Section 340 of Indian Penal Code. Prayers sought for in this Crl.M.C. are as follows: (i) Call for the records leading to Annexure A1 complaint in C.C.No.730/2007 on the file of the Judicial First Class Magistrate Court I, Kollam and to quash the same. (ii) To direct the JFCM I, Kollam to consider Annexure A3 petition in accordance with law and to pass appropriate orders thereon in the light of the settled legal position reported in 2010(1)KLT 445. 3. It is evident from the report filed by the Judicial Magistrate of First Class I, Kollam dated 10/08/2011 that no preliminary enquiry has been conducted as provided under Section 340(1) Cr.P.C. before launching the complaint. Therefore, the Annexure A1 complaint in C.C.730/2007 is set aside and the matter is remitted back to conduct preliminary enquiry in accordance with law. Crl.M.C. is disposed of as above. B.P.RAY, JUDGE jes