IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 2ND JUNE 2010 / 12TH JYAISTHA 1932 Crl.MC.No. 2115 of 2009() ------------------------- CC.628/2008 of JUDL. MAGISTRATE OF FIRST CLASS-V, KOZHIKODE .................... PETITIONER(S): ACCUSED 1 TO 3 ----------------------------- 1. BEEPATHU, VALIYADATHU HOUSE, AL-SAFA, FEROKE, CHUNGAM, KOZHIKODE. 2. ABDUL NAZAR, DO. 3. FEROSSA, W/O.MOHASIN, KALATHINGAL HOUSE, CHALIYAM, KOZHIKODE. BY ADV. SRI.V.G.ARUN SRI.T.R.HARIKUMAR RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI-31. PUBLIC PROSECUTOR MR.C.S.HRITHIK THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 02/06/2010, ALONG WITH CRMC NO. 3127 OF 2009 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: dmb V.RAMKUMAR, J. ------------------------------------- Crl.M.C. Nos. 2115 and 3127 of 2009 -------------------------------------- Dated this the 2nd day of June, 2010 ORDER The Petitioners in Criminal M.C.No.2115/2009 are accused Nos.1 to 3 in Crime No.189/2005 of Feroke Police Station and subsequently renumbered as CBCID Crime No.110/2006, Kozhikkode for offences punishable under Sections 4 and 20 of the Indian Telegraph Act 1885 and Section 3 and 6 of the Indian Wireless Telegraphy Act 1933 and Section 420 read with 34 IPC. The case is now pending before the Judicial First Class Magistrate Court-V , Kozhikkode as C.C.No.628/2008. 2. Crime No.3127/2009 is filed by the fourth accused in Crime No.264/1997 of Parassala Police Station and renumbered as CBCID Crime No.143/1997, Trivandrum, registered for offences punishable under Sections 120(B), 468, 471 and 420 IPC and Sections 20 and 25 of the Indian Telegraph Act 1885 and Rule 425 of the Indian Telegraph Rules. Crl.M.C. No.2115 and 3127 of 2009 : 2 : 3. The case of the prosecution in Criminal M.C.No.2115/2009 is that the accused persons were misusing call conferencing facilities available in the phone and established call conferencing with ISD line on one end and STD lines on the other end and thereby operated an illegal Telephone Exchange for certain period prior to 22.8.2005. 4. The case of the prosecution in Criminal M.C.No.3127/2009 is also that the accused persons therein were operating an illegal Telephone Exchange for certain periods and thereby the Telegram Department had sustained heavy loss. 5. It is true that the petitioners were permitted as per Annexure X order dated 26.5.2008 of this court in Criminal M.C.No.1757/2008 to challenge the final report. But pursuant to the final report, the Court below has taken cognizance of the offences and registered C.C.No.628/2008. Since there was no stay granted by this Crl.M.C. No.2115 and 3127 of 2009 : 3 : Court, it is admitted that the trial court has also framed the charge against the petitioners. 6. The petitioners in Criminal M.C.No.3127/2009 moved the Judicial First Class Magistrate Court-II, Neyyatinkara by filing C.M.P.No.2771/2009 in C.C.No.532/2004 for further investigation under Section 173 (8) Cr.P.C. As per Annexure B order dated 14.5.2009, the learned Magistrate dismissed the said petition. This Criminal M.C has been filed thereafter on 24.9.2009 seeking to quash Annexure B order passed by the trial Court as well as Annexure C final report filed by the Crime Branch Police. Here also it is submitted that since no stay was granted by this court and the trial court has framed charge against the petitioners and the matter is pending trial before the Judicial First Class Magistrate Court-II, Neyyattinkara as C.C.No.532/2004. 7. In both these cases the respective petitioners admittedly did not plead for a discharge and a charge has Crl.M.C. No.2115 and 3127 of 2009 : 4 : been framed against them and the case stands posted for trial. In Criminal M.C.No.3127/2009, the case is pending before the Judicial First Class Magistrate Court-II, Neyyattinkara as C.C.No.532/2004. Since the petitioners in both these cases did not plead for a discharge and the trial of the respective cases has started with the framing of charge in both cases, the proper remedy of the petitioners is to raise their respective contentions before the trial court during the trial of the case. One of the contentions raised by the petitioners in Crl.M.C.No.2115/2009 is that the activities carried on by the petitioners were perfectly legal. This contention can also be raised during the trial of the case. One of the contentions raised by the petitioner in Crl.M.C.No.3127/2009 is that by virtue of Section 20 (2) of the Indian Telegraph Act 1885, the offence under Section 20 (1) of the Telegraphic Act is a non cognizable offence and since sub section (2) contains a non-obstante clause Crl.M.C. No.2115 and 3127 of 2009 : 5 : overriding the provisions of the Cr.P.C, the learned Magistrate had no jurisdiction to take cognizance of the offences on police report and the said provisions will override Section 155(4) Cr.P.C. This is also a contention which can be raised before the court below during the trial of the case. Since the respective courts have framed a charge against the petitioners, the appropriate course available to the petitioners is to face the trial. If a question of identity does not arise during the trial of the case, the petitioners may file applications for personal exemption during the trial of the case and in case petitioners file petitions incorporating the necessary averments, the learned Magistrate shall exempt them from the personal appearance during the trial of the case. V.RAMKUMAR, JUDGE dmb