IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 8TH APRIL 2011 / 18TH CHAITHRA 1933 Crl.MC.No. 58 of 2011() ---------------------- CC.260/2009 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II, SULTHAN BATHERY ................. PETITIONERS / ACCUSED : --------------------------------------- 1. RAJASEKHARAN, S/O.SIDHAJAR, AGED 31 YEARS, DOOR NO.7/500, ALAKARMALAI, THALAIKUNNU.P.O., OOTTY-5. 2. SIDHAJAR, DOOR NO.7/500, ALAKARMALAI, THALAIKUNNU.P.O., OOTTY-5. 3. JAYAMMA, W/O.SIDHAJAR, DOOR NO.7/500, ALAKARMALAI, THALAIKUNNU.P.O., OOTTY-5. BY ADV. SRI.K.A.SALIL NARAYANAN RESPONDENTS / STATE AND COMPLAINANT : ------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031. 2. BEENA.M.K., D/O. (LATE) KUNHAN, AGED 28 YEARS, MADHURAKUNNEL HOUSE, POOTHADI.P.O., SULTHAN BATHERI TALUK, WYNAD DISTRICT - 673 596. R1 BY PUBLIC PROSECUTOR SMT. M.K. PUSHPALATHA R2 BY ADV. SRI. MANSOOR. B.H. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 08/04/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Mn THOMAS P.JOSEPH, J. ==================================== Crl. M.C. No. 58 of 2011 ==================================== Dated this the 08th day of April, 2011 O R D E R Petitioners are accused 1 to 3 in Crime No.90 of 2009 of Kenichira Police Station and C.C.No.260 of 2009 of the court of learned Judicial First Class Magistrate-II, Sulthan Bathery for offence punishable under Sec.498A read with Section 34 of the Indian Penal Code. Petitioners request the court to quash proceeding against them contending that the allegations do not make out a prima facie case against any of them and in particular, petitioners 2 and 3. I have heard learned counsel for petitioners, second respondent and the learned Public Prosecutor. 2. Learned counsel for petitioners contended that on going through the allegations contained in the compliant it is seen that the allegations at any rate is only concentrating first petitioner and so far as petitioners 2 and 3, his parents are concerned allegations are vague and generalized. I have been taken through the allegations in the complaint. Learned counsel for second respondent has drawn my attention to the statement given by the second respondent and C.W.5 to the police where CRL.M.C. No. 58 of 2011 -: 2 :- they have stated about petitioners coming to the house of the second respondent at Poothady demanding more ornaments and in connection with that, the first petitioner assaulting the second respondent. Learned counsel contended that though in the compliant the said incident is attributed only to the first petitioner in the light of statement given by the second respondent and C.W.5 to the Investigating Officer it is for the trial court to decide whether statement involving petitioners 2 and 3 is correct or not. 3. I am inclined to accept that contention. It is true that in the compliant the allegation regarding the incident at the house of second respondent concerned only the first petitioner but on going through the statement of the second respondent and C.W.5 given to the police under Sec.161 of the Code of Criminal Procedure (for short, “the Code”) involvement of petitioners 2 and 3 in the incident is also alleged. Let the trial court decide whether that version of the second respondent and her witness could be accepted or not. I do not find it justifiable or proper for this Court to decide on a question of disputed fact and quash the proceeding. 4. Learned counsel submitted that coercive steps under CRL.M.C. No. 58 of 2011 -: 3 :- Sec.82 and 83 of the Code have been taken against petitioners 2 and 3 and that non-bailable warrant is pending against them. Learned counsel submitted that application for exemption of petitioners 2 and 3 was preferred but that was rejected by the learned Magistrate. 5. It would appear that petitioners 2 and 3 are aged around, if not above 65 years. There could be no dispute regarding their identity. It is also not disputed that they are staying at Ootty. In the circumstances I do not consider it necessary to direct petitioners 2 and 3 to appear before learned Magistrate every now and then the case is taken up for trial. Notwithstanding an application for exemption already rejected by the learned Magistrate, I make it clear that in the light of the observations made above it is open to petitioners 2 and 3 to make fresh application through their counsel for permanent exemption. I make it clear that for the said purpose presence of petitioners 2 and 3 before the learned Magistrate is not required. Learned Magistrate shall consider the application filed by petitioners 2 and 3 in absentia appearing through counsel and pass appropriate orders having regard to the nature of allegations made against petitioners 2 and 3 and the fact that they are aged CRL.M.C. No. 58 of 2011 -: 4 :- around 65 years, presently staying at Ootty. Petitioners 2 and 3 shall file affidavit before the learned Magistrate undertaking that trial could be conducted in their absence and allowing the plea of petitioners 2 and 3 to be recorded through counsel in case charge is to be framed and further that in case examination of petitioners 2 and 3 under Sec.313 of the Code is required that could be done in the manner provided by the Supreme Court in the decision reported in Basavraj R.Patil v. State of Karnataka ([2000] 8 SCC 740 at page 743). With the directions and observations made above this Criminal Miscellaneous Case is closed. Warrant of arrest issued to the petitioners will stand in abeyance for a period of one month from this day. Necessary application as above referred shall be filed by petitioners 2 and 3 before the learned Magistrate within the said period. THOMAS P. JOSEPH, JUDGE. vsv