IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 18TH FEBRUARY 2010 / 29TH MAGHA 1931 Crl.MC.No. 173 of 2010() ------------------------ AGAINST THE ORDER IN LP.11/2007 IN CC.180/2002 of JUDL. MAGISTRATE OF FIRST CLASS COURT II- NEYYATTINKARA .................... PETITIONER(S): ACCUSED: ------------------------------------------ JAYAPRAKASH, SON OF THANKAPPAN, VADAKKE JAYAMANDIRAM, MANCHAVILAKOM, NEYYATTINKARA. BY ADVS. MR.S.M.PREM, SMT.K.P.SANTHI, MR.P.K.NIJOY, SMT.NISHA G.THARAMAL. RESPONDENT(S): STATE & COMPLAINANT: ----------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SHYJA @ LALY, RETNAVILASOM, MEMOM, THIRUPURAM, NEYYATTINKARA. R1 BY PUBLIC PROSECUTOR MR. AMJAD ALI THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 18/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No. 173 OF 2010 =========================== Dated this the 18th day of February,2010 ORDER Petitioner is the accused in C.C.180/2002 on the file of Judicial First Class Magistrate's Court-II, Neyyattinkara now pending as L.P.No.11/2007 taken cognizance for the offence under section 365 of Indian Penal Code on Annexure II final report. This petition is filed under section 482 of the Code of Criminal Procedure contending that continuation of the proseedings is an abuse of process of the court and petitioner is a natural guardian of the child who was allegedly kidnapped and there is inordinate delay in filing the complaint and in such circumstances the case is to be quashed. 2. Learned counsel appearing for the petitioner and the learned Public Prosecutor Crl.M.C.173/2010 2 were heard. 3. Annexure II final report shows that prosecution case is that on the failure of the second respondent mother of the minor son to pay the money demanded by the petitioner on 30.11.2001 at 4.30 p.m, while Sreehari, the minor son of the second respondent was returning from the school in the school bus, petitioner got it stopped and forcibly kidnapped him and confined him and thereby committed the offence under section 365 of Indian Penal Code. The argument of the learned counsel is that Annexure I F.I.R itself shows that petitioner is shown in the school register as the father of the son Sreehari and in Annexure III judgment it is found that Sreehari is not the son of Rajendran, the brother of the petitioner and therefore petitioner is the natural guardian of the child and when he is shown as the father of Sreehari in the school register, an offence under section 365 IPC is not attracted against him. Crl.M.C.173/2010 3 4. Petitioner is not having a case that he is the father of Sreehari. Hence he is not entitled to contend that he is the natural guardian of the minor Sreehari and therefore an offence under section 365 IPC is not attracted. The question whether the delay in filing the F.I.R is fatal or not is to be considered at the time of the evidence. For the sole reason that there was some delay, the case cannot be quashed as sought for. Petition is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006