IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI MONDAY, THE 25TH AUGUST 2008 / 3RD BHADRA 1930 Crl.MC.No. 1969 of 2005(A) -------------------------------------- S.T. NO. 863/2005 OF JUDL. MAGISTRATE OF FIRST CLASS COURT-II, TRIVANDRUM .................... PETITIONERS/ RESPONDENTS: --------------------------------------------- 1. SHAJI, T.C.49/765, KARTHIKA NAGAR, H.NO.56, MANACAUD, THIRUVANANTHAPURAM. 2. BINDU, W/O. SHAJI, T.C.49/765, KARTHIKA NAGAR, H.NO.56, MANACAUD, THIRUVANANTHAPURAM. 3. SATHEESH CHANDRAN, MALLIYIDAM RESIDENT'S ASSOCIATION, H.NO.51, T.C.62/1628, KALIPPANKULAM, MANACAUD, THIRUVANANTHAPURAM. BY ADV. SRI.P.N.MOHANAN. RESPONDENTS/ COMPLAINANT: ----------------------------------------------- 1. SREEJITH, S/O. SREEDHARAN NAIR, T.C.49/764, KARTHIKA NAGAR, H.NO.55, MANACAUD, THIRUVANANTHAPURAM. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. *ADDL.R3. SREEDHARAN, KARTHIKA NAGAR, T.C. 49764, KARTHIKA NAGAR, H. NO. 55, MANACAUD, THIRUVANANTHAPURAM. *ADDL. R3. IMPLEADED AS PER ORDER DATED 13/07/2005 IN CRL.M.A. NO. 8443/2005 IN CRL.M.C. 1969/05. PUBLIC PROSECUTOR SRI. PUZHAKKARA MUHAMMED FOR R2, ADV. SRI.M.SREEKUMAR FOR R1 & R3. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 25/08/2008,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. V. GIRI, J. ------------------------------- Crl.M.C.NO. 1969/2005 --------------------------------- Dated this the 25th day of August, 2008. ORDER The accused in ST.No.863/2005 on the files of the JFCM Court -II, Thiruvananthapuram are the petitioners in this petition under section 482 of the Cr.P.C. The allegation in Annexrue-5 complaint which has led to ST.No.863/2005 is to the effect that the complainant and accused 1 and 2 are neighbours. Third accused is the father of the 2nd accused. The accused abused the complainant and tried to cause grievous hurt by attacking with a sword. The complainant escaped from the injury. But he fell down and he was stamped on his left leg by the first accused and the second accused had thrown a stone. On these it is alleged that the accused have committed the offence under sections 323,294(B),447, and 506(ii) read with section 34 of the IPC. The sworn statement of the complainant was recorded. But there does not seem to have been any medical evidence adduced before the court. The first petitioner is the Senior Manager of the Bajaj Alliance Company and the second petitioner is a CRMC.1969 /2005 2 Gynecologist. The third petitioner is a retired Administrative Assistant of the Education Department. The petitioners make reference to certain earlier disputes between the petitioners on the one hand and the complainant on other hand. Apparently, petitioners 1 and 2 had earlier made a complaint regarding the alleged unauthorised construction made by the complainant. It also makes reference to nuisance caused by the accused to the complainant after consuming liquor on more than one occasion and an alleged attempt by the third accused against the complainant. 2. Having heard counsel on both sides and having perused the nature of the allegations in the complaint and the fact that apparently there were certain previous instances involving the same parties, I am of the view that the instant case would have been an appropriate one where the learned Magistrate had referred the complaint to the police for investigation under section 156(3) of the Cr.P.C. and then further proceed with. In the result, the Crl.M.C. is allowed in part. The order of the learned Magistrate taking cognizance in ST.No.863/2005 is set aside. The learned Magistrate is directed to refer Annexure-5 CRMC.1969 /2005 3 complaint to the police for investigation and report under section 156(3) of the Cr.P.C. The learned Magistrate shall then proceed with the matter after the investigating officer files a report in that regard. V. GIRI, JUDGE. Pmn/