IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 11TH FEBRUARY 2009 / 22ND MAGHA 1930 Crl.MC.No. 2679 of 2006() ------------------------- CMP.2069/2006 of JUDL. MAGISTRATE OF FIRST CLASS COURT, THALASSERY .................... PETITIONER(S): ACCUSED ---------------------- 1. SYED SHIHAB THANGAL, S/O.SAIDALAVI THANGAL, AGED 30 YEARS, ZEENATH MANZIL, P.O.SHERIYA MUTTAM, KASARAGODE. 2. SAIDATH HAIRUNNISSA, D/O.SAIDALAVI THANGAL, AGED 25 YEARS, ZEENATH MANZIL, P.O.SHERIYA MUTTAM, KASARAGODE. 3. SHAREEFA, D/O.KHADEJA, AGED 48 YEARS, ZEENATH MANZIL, P.O.SHERIYA MUTTAM , KASARGODE. BY ADV. SRI.BECHU KURIAN THOMAS RESPONDENT(S): COMPLAINANT -------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SAYED SALMAN MOHAMMED SAQUAF, S/O.LATE SYED MOHAMMED SAQUAF, AGED 24 YEARS, DARUL BHARKA, KELOTH P.O. PERINGATHUR, THALASSERY. BY PUBLIC PROSECUTOR SHRI C.M.NAZAR FOR R1 ADV. SRI.K.S.MADHUSOODANAN FOR R2 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 11/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.A.NO.4804/06 IN CRL.M.C.NO.2679/06 //DISMISSED// 11.2.09 SD/-M.C.HARI RANI, JUDGE. TRUE COPY P.A.TO JUDGE M.C.HARI RANI, J. ----------------------------------------------------- CRL.M.C.No.2679 OF 2006 ----------------------------------------------------- DATED THIS THE 11TH DAY OF FEBRUARY , 2009 O R D E R This petition is filed under Section 482 of Cr.P.C. with the prayer to quash Annexures A3, A3(a), A3(b) and A3(c) and all proceedings in C.M.P.No.2069/06 on the file of Judicial First Class Magistrate's Court, Thalassery. Annexure A3 is the complaint filed by the second respondent in this petition before the J.F.C.M., Thalassery under Section 190(1)(a) of Cr.P.C. against petitioners 1 to 3 as the accused with the allegation that they have committed offences punishable under sections 342 and 506(ii) read with Section 34 of IPC. Annexures A3(a), A3(b) and A3(c) are the notices issued from the Court of J.F.C.M., Thalassery on 27.7.2006 directing petitioners 1 to 3 to appear before that court on 5.8.2006 at 11 AM without fail. Copy of the petition filed by the 2nd respondent herein was also forwarded to the petitioners along with the said notices. 2. Heard the learned counsel appearing for petitioners and the learned counsel appearing for the 2nd respondent. Heard CRL.M.C.No. 2679/06 -2- the learned Public Prosecutor also. 3. It is submitted by the learned counsel appearing for the petitioners that no offence has been made out against the petitioners in Annexure A3 complaint and issuance of Annexures A3(a), A3(b) and A3(c) notices in C.M.P.No.2069/06 directing the petitioners to appear before the Court of J.F.C.M., Thalassery before taking cognizance of the case by the learned Magistrate is incorrect and for those reasons, Annexures A3(a), A3(b) and A3(c) are liable to be quashed. It is also submitted by the learned counsel appearing for the petitioners that Annexure A3 complaint was filed by the second respondent against the petitioners before the Court at Thalassery, which is about 150 Kms away from the residence of the petitioners and that the complaint is mala fide and is an abuse of process of the court. 4. The prayer in this petition to quash Annexure A3 complaint is opposed by the learned counsel appearing for the 2nd respondent. It is fairly conceded by the learned counsel appearing for the 2nd respondent that an incorrect procedure has been followed by the learned Magistrate by issuing notices- Annexures A3(a), A3(b) and A3 (c) to the petitioners before taking cognizance of the case and without adopting the procedures complied in any of the provisions of sections CRL.M.C.No. 2679/06 -3- 190, 200, 201 and 202 of Cr.P.C. It is also conceded by both parties that no sworn statement has been taken by the learned Magistrate and Magistrate has not applied his mind to verify whether prima facie case is there to proceed against the petitioners. Without adopting the procedures complied in any of the provisions of Cr.P.C. as above mentioned, the learned Magistrate has issued process against the accused directing them to appear before that court. That mistake can be corrected by giving proper direction to the learned Magistrate to comply the procedures envisaged in the Cr.P.C. For that reason, the complaint Annexure A3 as such cannot be quashed as prayed for in this petition. Whether prima facie case is there to proceed with against the petitioners in pursuance of Annexure A3 complaint is yet to be decided, which is the duty of the learned Magistrate. Whether offence has been made out under sections 342 and 506(ii) read with Section 34 of IPC, as complained in Annexure A3, by the petitioners herein will also be decided by the learned Magistrate in appropriate stage. It is for the prosecution to prove the case. This Court cannot jump into a conclusion that no offence has been made out against the petitioners so as to quash Annexure A3 as prayed for in this petition. In these circumstances, this petition is allowed to the effect that CRL.M.C.No. 2679/06 -4- Annexures A3(a), A3(b) and A3(c) notices issued by the J.F.C.M., Thalassery calling upon the petitioners to appear before that Court is quashed and the learned Magistrate is directed to conduct an enquiry as envisaged under sections 190, 200, 201 and 202 of Cr.P.C. and to proceed with Annexure A3 in accordance with law. M.C.HARI RANI, JUDGE. dsn