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. 2033 of 2010() ------------------------------ CC.454/2007 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, NEDUMANGAD .................... PETITIONER(S): ACCUSED ------------------------------- 1. ASOKAN.B.,S/O. BHASKARAN, ALAKOTTU PADINJATTETHIL,PANTHAPLAVU.P.O., PATTAZHY VILLAGE,PATHANAPURAM TALUK,KOLLAM DIST. 2. BHASKARAN, FATHER OF ASOKAN, ALAKOTTU PADINJATTETHIL,PANTHAPLAVU.P.O., PATTAZHY VILLAGE,PATHANAPURAM TALUK,KOLLAM DIST. 3. LEKSHMIKUTTY, MOTHER OF ASOKAN, ALAKOTTU PADINJATTETHIL,PANTHAPLAVU.P.O., PATTAZHY VILLAGE,PATHANAPURAM TALUK,KOLLAM DIST. 4. ANILKUMAR, S/O. BHASKARAN, ALAKOTTU PADINJATTETHIL,PANTHAPLAVU.P.O., PATTAZHY VILLAGE,PATHANAPURAM TALUK,KOLLAM DIST. 5. AMBILY, D/O. BHASKARAN, ALAKOTTU PADINJATTETHIL,PANTHAPLAVU.P.O., PATTAZHY VILLAGE,PATHANAPURAM TALUK,KOLLAM DIST. BY ADV. DR.PAULY MATHEW MURICKEN RESPONDENT(S): STATE & COMPLAINANT ------------------------------------------------ 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 2. SUB INSPECTOR OF POLICE, NEDUMANGAD POLICE STATION. 3. G.R.BINDU, D/O. GEETHA, SREERAGAM, THEKKUMKARA KIZHAKKE BUNGALOW, NEDUMANGAD, THIRUVANANTHAPURAM. R1 & R2 BY PUBLIC PROSECUTOR SRI.P.A.SALIM R3 BY ADV.SRI.M.SREEKUMAR THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 03/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: svs/ M.SASIDHARAN NAMBIAR, J ........................................... CRL.M.C..NO. 2033 OF 2010 ............................................ DATED THIS THE 3rd DAY OF NOVEMBER,2010 ORDER Petitioners are the accused in C.C.No.454 of 2007 on the file of Judicial First Class Magistrate-II, Nedumangad taken cognizance for the offence under Section 498A read with Section 34 IPC, on Annexure III final report submitted by the S.I of Police, Nedumangad in Crime No.13 of 2007 which was registered under Annexure II FIR based on Annexure I complaint filed by the second respondent before Judicial First Class Magistrate-II, Nedumangad and sent for investigation under Section 156(3) of Code of Criminal Procedure. Petition is filed under Section 482 of Code of Criminal Procedure to quash the cognizance taken, contending that ingredients of the offence is not attracted and there is no material to prosecute the petitioners. 2. Learned counsel appearing for petitioners, learned counsel appearing for second respondent, defacto complainant and learned Public Prosecutor were heard. 3. The argument of the learned counsel is that Annexure A1 CRMC 2033/2010 2 complaint was filed only after the first petitioner filed Annexure IV petition for restitution of conjugal rights before the Family Court, as a counter blast to the said claim and that too, after more than two and half years from the date of alleged commission of the offences and in such circumstances, it is clear that the complaint was filed with malafides and in the absence of any material to prima facie show that petitioner committed the offence, cognizance taken is to be quashed. Learned counsel appearing for the second respondent pointed out that the necessary ingredients are alleged in Annexure I complaint and there is no reason to quash proceedings. 4. On hearing the learned counsel and going through Annexure I complaint and Annexure III FIR, I cannot agree with the submission of the learned counsel appearing for the petitioners that there is no material to connect the petitioners with the offence alleged or that ingredients of the offence are not pleaded in Annexure I complaint. Hence the case cannot be quashed as sought for. Learned counsel appearing for the petitioners then submitted that petitioners may be permitted to raise the contentions before the learned Magistrate and CRMC 2033/2010 3 seek an order of discharge submitting that the charge has not been framed. If charge is not yet framed, petitioners are entitled to seek an order of discharge under Section 239 of Code of Criminal Procedure. Learned counsel then submitted that the entire matrimonial disputes were settled before Family Court and second respondent has agreed to withdraw the prosecution. Learned counsel appearing for the second respondent disputed the submission that there was an agreement by second respondent to withdraw the prosecution. Whatever it be, if there is a composition with the second respondent, petitioners with the second respondent are entitled to approach the court to quash the proceedings under Section 482 of Code of Criminal Procedure and this order will not be a bar. Petition is disposed of as above. M.SASIDHARAN NAMBIAR, JUDGE lgk