IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 22ND JULY 2008 / 31ST ASHADHA 1930 Crl.MC.No. 2718 of 2008() ------------------------- C.C.NO.212/2007 of JUDL. MAGISTRATE OF FIRST CLASS COURT, ALATHUR .................... PETITIONERS/ACCUSED: ------------------- 1. CHENTHAMARAKSHAN.K., S/O.SANKARAN NAIR, 54 YEARS, KODOTH VEEDU, ATHIPOTTA ALATHUR TALUK, PALAKKAD. 2. MANIKANDAN, S/O.VELU 30 YEARS, KARUMKODE VEEDU, VAVULLIAPURAM PO., ALATHUR TALUK, PALAKKAD. 3. A.V.RAJAPPAN, S/O.SANKARA WARRIER, 45 YEARS, VARIYAM, ATHIPOTTA, ALATHUR TALUK PALAKKAD. 4. VASUDEVAN, S/O.MADHAVAN NAIR, 52 YEARS, DEVASWOM SUPERINTENDENT, MANGOTTAKAVU TEMPLE,ALATHUR TALUK PALAKKAD. BY ADV. SRI.JOHNSON P.JOHN SRI.BABY MATHEW RESPONDENT/COMPLAINANT: ----------------------- 1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM 2. C.KANAKAN, S/O.CHAMUKUTTAN, 28 YEARS VADAKKETHEKKEPOTTAL VEEDU, ATHIPOTTA, TARUR, ALATHUR, PALAKKAD BY SRI. GIKKU JACOB, PUBLIC PROSECUTOR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 22/07/2008,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.No. 2718 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 22nd day of July, 2008 O R D E R The petitioners face allegations in a private complaint filed by the second respondent herein. The second respondent had earlier filed a private complaint alleging commission of the offences punishable, inter alia, under Sections 452 and 395 I.P.C. against one Raveendran and others, including the petitioners herein. That complaint was referred to the police by the learned Magistrate and a crime was registered. Investigation was conducted and final report was filed before the learned Magistrate. In that final report no allegations whatsoever were raised against the petitioners herein. Allegations were raised only against one Raveendran, the principal accused in that case. As against the petitioners, it was found that, the allegations were without any substance and no culpability was alleged against them. It is in these circumstances that the second respondent/ defacto complainant filed a protest complaint again before the Crl.M.C.No. 2718 of 2008 2 learned Magistrate against the petitioners raising the very same allegations. That complaint was received by the Magistrate and the learned Magistrate has issued processes against the petitioners under Section 204 Cr.P,.C. The petitioners claimed to be aggrieved by the said action of the learned Magistrate taking cognizance of the offences alleged against the petitioners. 2. I shall carefully avoid any detailed discussion on merits about the acceptability of the allegations or the credibility of the data that is already available before the Magistrate. But it cannot be lost sight of that the petitioners are not alleging any procedural infirmity in the proceedings. The only contention urged by the learned counsel for the petitioners is that the allegations are false and are incongruent to the statements made by the witnesses before the police. The learned counsel for the petitioners is unable to explain to this Court whether the statements of all those witnesses – whose statements were recorded before the police by the Investigating Officer – have been recorded by the Magistrate at the stage of pre-Section 204 enquiry or not. Crl.M.C.No. 2718 of 2008 3 3. There is a further contention that fresh witnesses who were not cited before the police have been cited before the Magistrate at the stage of enquiry for cognizance. In short the only contention now is that the allegations are false and the witnesses examined are not trustworthy witnesses. That contention cannot obviously be decided or resolved at this early stage of the proceedings. It is for the petitioners to appear before the learned Magistrate and claim premature termination of the proceedings by discharge under Section 245(2) or/and 245(1) Cr.P.C. It is for the learned Magistrate to consider such plea for discharge and pass appropriate orders. I am not persuaded to agree that the powers under Section 482 Cr.P.C. can or need now be invoked in favour of the petitioners. 4. The learned counsel for the petitioners submits that great prejudice and hardship would be resulted if insistence were made ritualistically on the personal presence of the petitioners on all dates of posting. The petitioners have already appeared and bail has already been granted to the petitioners, submits the counsel. The petitioners have a grievance that their application for exemption from personal Crl.M.C.No. 2718 of 2008 4 appearance has been dismissed by the learned Magistrate. I am satisfied that the petitioners can be given a further opportunity to apply for exemption from personal appearance and the learned Magistrate must consider such applications afresh on merits. Needless to say, ritualistic insistence on the personal presence of the petitioners cannot and need not be made by the learned Magistrate. Only if the personal presence of the petitioners is found to be necessary for the progress of the trial/enquiry, can and need the Magistrate insist on their personal appearance. Till then the petitioners can be permitted to appear through their counsel. 5. With the above observations this CrlM.C. is dismissed. (R. BASANT) Judge tm