IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 28TH OCTOBER 2010 / 6TH KARTHIKA 1932 Crl.MC.No. 3758 of 2009() ------------------------------------ CC.661/2008 of ADDL. CHIEF JUDICIAL MAGISTRATE COURT, TRIVANDRUM .................... PETITIONERS/ACCUSED NOS. 3 TO 5 ----------------------------------------------------- 1. SMITHA, "JAYASUDHA", PNRA - 16, PRASANTH NAGAR, THIRUVANANTHAPURAM. 2. SUMITHA, "JAYASUDHA", PNRA - 16, PRASANTH NAGAR, THIRUVANANTHAPURAM. 3. RAJESH, THEKKEDATHU VEEDU, PERUMANNUR, PATHANAPURAM. BY ADV. SRI.M.SREEKUMAR RESPONDENTS/STATE & COMPLAINANT ----------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. PRASANTH, S/O.GOPALAKRISHNAN, TC 5/1902(1), 'KRISHNAPRIYA', SREEKRISHNA LANE, KOWDIAR P.O., THIRUVANANTHAPURAM DISTRICT. R1 BY PUBLIC PROSECUTOR MR.I.V. PRAMOD. R2 BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 28/10/2010, ALONG WITH CRMC NO. 3759 OF 2009 AND CRMC NO. 3760 OF 2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No.3758, 3759 & 3760 OF 2009 =========================== Dated this the 28th day of October,2010 ORDER Petitioners are accused 3 to 5 in 661/2008,660/2008 and 659/2008 on the file of Additional Chief Judicial Magistrate, Thiruvananthapuram taken cognizance for the offences under sections 406 and 420 read with section 34 of Indian Penal Code. Petitions are filed under section 482 of Code of Criminal Procedure to quash the cognizance taken contending that petitioners did not receive any amount from the witnesses as alleged by the prosecution and there is no material to connect petitioners with the offence and therefore it is to be quashed. The contention is that there is no allegation disclosing the ingredients of the offence alleged against the petitioners. Crl.M.C.3758,3759 & 3760/2010 2 2. Learned counsel appearing for petitioners, second respondent in Crl.M.C.3758/2009 and learned Public Prosecutor were heard. 3. Learned counsel appearing for petitioners submitted that this court in Crl.M.C.1911/2009, on identical facts has already quashed the proceedings against the petitioners therein and in the light of the said findings the case as against petitioners is to be quashed. Learned counsel appearing for second respondent submitted that there are statements by the witnesses to the effect that petitioners were present, at the time when the amount was collected and in such circumstances, contention that there is no material against petitioners is not correct. 4. On hearing the learned counsel appearing for petitioners, second respondent and learned Public Prosecutor, I do not find that it is for this court to analyse the entire materials and find out whether there is any material as against the petitioners. On the final report it cannot be Crl.M.C.3758,3759 & 3760/2010 3 said that ingredients of the offence is not alleged. Petitioners are entitled to raise all the contentions before the learned Magistrate and seek an order of discharge under section 239 of Code of Criminal Procedure. Learned counsel then submitted that presence of the petitioners may not be insisted for the purpose of claiming discharge. Petitions are disposed granting liberty to the petitioners to raise all the contentions raised herein before Additional Chief Judicial Magistrate, Thiruvananthapuram and claim discharge under section 239 of Code of Criminal Procedure. If petitioners file an application under section 205 of Code of Criminal Procedure, to dispense with their presence for the purpose of claiming discharge under section 239 of Code of Criminal Procedure,learned Magistrate not to insist for their presence for that limited purpose. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006