IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 19TH JANUARY 2010 / 29TH POUSHA 1931 Crl.MC.No. 3346 of 2009() ------------------------------------- CC.755/2009 of JUDL. MAGISTRATE OF FIRST CLASS COURT-IV, KOZHIKODE .................... PETITIONER/ACCUSED --------------------------------- DR.YASIR ABDULLAH, S/O.ABDULLAH KOYA, VAYALIL MALIYEKKAL HOUSE, KUTTICHIRA, TRIKKOVIL LANE, KOZHIKODE DISTRICT. BY ADV. MR.SUNNY MATHEW RESPONDENT(S): -------------------------- 1. E.K. ISMAIL, S/O.KHADER, ETTUKANDATHIL HOUSE, MUTTANCHERI.P.O, NARIKUNI. 2. THE SUB INSPECTOR OF POLICE, NADAKKAVU POLICE STATION, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR MR.S.U. NAZAR. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 19/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No. 3346 OF 2009 =========================== Dated this the 19th day of January,2010 ORDER Petitioner the accused in C.C.755/2009 on the file of Judicial First Class Magistrate Court-IV, Kozhikode filed this petition to quash Annexure 2 final report taken cognizance by the learned Magistrate when it was submitted after further investigation. Learned Magistrate has originally taken cognizance on the final report submitted by the police alleging that first respondent is the accused, who committed the offence. When the de facto complainant appeared before the court and examined as PW1, he deposed that first respondent, who was standing in the accused's dock is not the real accused. Thereafter Investigating Officer filed a petition for further investigation under section 173(8) of Crl.M.C.3346/2009 2 Code of Criminal Procedure and learned Magistrate permitted further investigation. It is based on the further investigation, Annexure 2 final report is filed. 2. The argument of the learned counsel is that the case is foisted against the petitioner to save the first respondent, who is the real culprit. Though learned counsel argued that in the light of the original investigation and the final report, the subsequent statement by the de facto complainant should not have been relied on to take cognizance of the offence against the petitioner , on going through the Case Diary which is made available by the learned Public Prosecutor, I cannot agree with the submission. 3. The question regarding the identity of the petitioner is a matter to be considered at the time of trial. Petitioner is at liberty to raise all the contentions raised herein at the time of trial. Learned counsel submitted that petitioner Crl.M.C.3346/2009 3 has already been released on bail and his personal presence may not be insisted for the purpose of trial. But when the identity of the petitioner is essential, I do not think that personal presence of the petitioner could be dispensed, with at the time of recording the evidence. If his presence is not necessary for a posting day, petitioner is at liberty to file a petition under section 205 of Code of Criminal Procedure for dispensing with his presence. Petition is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006