IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 3RD NOVEMBER 2010 / 12TH KARTHIKA 1932 Crl.MC.No. 3946 of 2010(E) -------------------------------------- [CP.NO.107/2009 OF JUDL.MAGISTRATE OF FIRST CLASS, KAYAMKULAM, CRIME NO.134/2007 OF THE VALLIKUNNAM POLICE STATION] .................... PETITIONERS/ACCUSED NO. 1 TO 7: ----------------------------------------------------- 1. ASIM, AGED 23 YEARS, S/O.ABDUL AZEEZ, KUTHADIVILAYIL VEETIL, MANNADI P.O., ENATHU, KADAMPANADU VILLAGE, ADOOR TALUK. 2. ANIL KUMAR, AGED 33 YEARS, S/O.GOPALAN, SANKARA VILASATHIL, NELLIMUGAL, P.O.MUNDAPPALLY MURI, PERINGANAD VILLAGE, ADOOR TALUK. 3. SUBASH, AGED 22 YEARS, S/O.VASUDEVAN, NEDIYAKALAYIL THEKKETHIL, CHERUPPUNCHA BHAGAM, ADOOR VILLAGE & TALUK. 4. SREEDHARAN, AGED 32 YEARS, S/O.RAGHAVAN, MUNNATTUKARAYIL KANJIRAVILAYIL VEETTIL, THENGAMMAM MURIYIL, PALLICKAL VILLAGE, ADOOR TALUK. 5. SURESH, 29 YEARS, S/O.VASUDEVAN, NEDIYAKALAYIL THEKKETHIL, CHERUPPUNCHA BHAGAM, ADOOR VILLAGE & TALUK. 6. RAJEEV, AGED 22 YEARS, S/O.RAVEENDRAN PILLAI, RAJEEV NIVAS, KIZHAKKE MURIYIL, THAMARAKULAM VILLAGE. 7. RAJESH KUMAR, AGED 22 YEARS, S/O.SASIDHARAN, SMITHA BHAVAN, CHERUKUNNAM MURI, PALLICKAL VILLAGE, ADOOR TALUK. BY ADVS. SRI.V.SETHUNATH, SRI.PRAKASH KESAVAN. CRL.M.C. NO.3946/2010-E: RESPONDENTS/RESPONDENTS: ----------------------------------------------- 1. THE S.I. OF POLICE, VALLIKUNNAM POLICE STATION, (ALAPPUZHA DISTRICT) PIN - 683 642. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 & R2 BY PUBLIC PROSECUTOR SRI. I.V. PRAMOD. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 03/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. M.SASIDHARAN NAMBIAR, J. ------------------------------------ Crl.M.C. No. 3946 of 2010 ------------------------------------- Dated this the 3rd day of November, 2010. ORDER Petitioners are accused nos.1 to 7 in C.P. 107/2009 on the file of the Judicial First Class Magistrate's Court, Kayamkulam. Petition is filed under Section 482 of Code of Criminal Procedure, to quash the cognizance taken for offences under Sections 399 and 464 of Indian Penal Code contending that on the allegations seen in Annexure-2 final report, as well as Annexure-1 F.I.R, offence under Section 399 and 464 are not attracted. 2. Learned counsel appearing for the petitioners and learned Public Prosecutor were heard. 3. The argument with the learned counsel appearing for the petitioners, relying on the decision in Chaturi Yadav and others v. State of Bihar 1979 AIR (SC) 1412, is that even if petitioners were found travelling in the vehicle as alleged, in the absence of any material to show that they were proceeding to commit dacoity, they cannot be prosecuted for the offence under Section 398 of Indian Penal Code. Crl.M.C. No. 3946 of 2010 2 4. On hearing the learned counsel appearing for the petitioners and learned Public Prosecutor, I do not find that it is for this court to quash the proceedings on the submissions made by the petitioners. They are entitled to raise all the contentions before the learned Sessions Judge, and seek an order of discharge under Section 227 of Code of Criminal Procedure. Petition is disposed granting liberty to the petitioners to raise all the contentions and seek an order of discharge under Section 227 of Code of Criminal Procedure. M.SASIDHARAN NAMBIAR, JUDGE ln