IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 10TH MARCH 2010 / 19TH PHALGUNA 1931 Crl.MC.No. 621 of 2010() ------------------------ CP.252/2009 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, PUNALUR .................... PETITIONER: --------------- SRI.SANTHOSH S., S/O.SUKUMARA PILLAI, LATHIKA VILASOM, THUDAYNNUR P.O., KOTTARAKKARA TALUK, KOLLAM. BY ADV. SRI.S.ABHILASH RESPONDENTS: --------------- 1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. JAYANTHI, JYOTHI NIVAS, EDAMULACKAL P.O., ANCHAL, KOLLAM. BY PUBLIC PROSECUTOR SRI. K.S.SIVAKUMAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 10/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. --------------------------- CRL.M.C. No. 621 OF 2010 -------------------------- Dated this the 10th day of March, 2010 O R D E R Petitioner is the accused in C.P. No.252/2009 on the file of the Judicial First Class Magistrate Court-I, Punalur, taken cognizance for the offence under Section 376 of Indian Penal Code. Petition is filed under Section 482 of Code of Criminal Procedure to quash the cognizance taken on Annexure-A5 final report contending that the statement of the victim was recorded under Section 164 of Code of Criminal Procedure and subsequently the victim retracted from that statement and the investigation officer has no power to rely on the retracted statement and ignore the statement recorded under Section 164 of Code of Criminal Procedure and therefore the final report is to be quashed. The learned counsel also argued that there was no proper investigation. 2. The value of the statement recorded under Section 164 of Code of Criminal Procedure is not different from the statement recorded under Section 161 of Code of Criminal Procedure. A statement recorded, whether under Section 161 or 164, can only be used to contradict that witness at the time of trial. Based on the Crl. M.C. No.621/2010 2 statement recorded under Section 164 of Code of Criminal Procedure, accused is not entitled to get the final report quashed. The question whether there is sufficient evidence to convict the petitioner is a matter to be decided by the learned Sessions Judge at the time of trial. Petition is dismissed. M.SASIDHARAN NAMBIAR (JUDGE) vps Crl. M.C. No.621/2010 3