IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 8TH NOVEMBER 2010 / 17TH KARTHIKA 1932 Crl.MC.No. 4439 of 2010() ------------------------- CC.122/2010 of CHIEF JUDICIAL MAGISTRATE COURT, THRISSUR .................... PETITIONER(S): ACCUSED: ----------------------------------------- 1. ANTO FRANCIS, ADATTUKARAN HOUSE, CHRISTOPHERE NAGAR, OLLUR. 2. GIRLY @ GOPIKA, D/O.ANTO FRANCIS, RESIDING DO. BY ADV. SRI.T.G.RAJENDRAN RESPONDENT(S): COMPLAINANT/STATE: --------------------------------------------------------------- 1. JOYS PALACE, HIGH LUXURY BUSINESS HOTEL, PB NO.103, T.B.ROAD, THRISSUR, REP. BY ITS PERSONAL MANAGER, JAYESH, S/O.BHASKARA KURUP, PALAKKAVIL HOUSE, KALLOOR DESOM, VADAKKEKAD, THRISSUR. 2. DEPUTY SUPERINTENDENT OF POLICE, TRICHUR. 3. STATE REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 & R3 BY PUBLIC PROSECUTOR SRI. P.A. SALIM THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 08/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR, J ........................................... CRL.M.C..NO.4439 OF 2010 ............................................ DATED THIS THE 8th DAY OF NOVEMBER,2010 ORDER Petitioners are accused and first respondent the complainant in C.C.122 of 2010 on the file of Chief Judicial Magistrate, Thrissur taken cognizance for the offence under Section 420 read with Section 34 of IPC on 14.7.2010, after recording the sworn statement of the complainant and calling for a report from the DySP, Thrissur under Section 202 of Code of Criminal Procedure. Petition is filed under Section 482 of Code of Criminal Procedure to quash the cognizance taken contending that on the facts, learned Magistrate could not have taken cognizance for the offence under Section 420 IPC. Learned counsel also pointed out that though Annexure III report was submitted, based on Annexure II report, cognizance could not have been taken and there is no other material before the learned Magistrate to take cognizance. 2. On hearing the learned counsel, I do not find it necessary for this court to quash the proceedings. Petitioner is entitled to raise all the CRMC 4439/2010 2 contentions raised herein before the learned Magistrate and seek an order of discharge under Section 245(1) of Code of Criminal Procedure. Learned Magistrate is bound to record the statement of the complainant and the witnesses as provided under Section 244 of Code of Criminal Procedure and petitioners are entitled to cross examine them. Thereafter, petitioners are to be heard and learned Magistrate has to consider whether there are materials to frame a charge under Section 246(1) or to discharge the petitioners under Section 245(1) of Code of Criminal Procedure. Petitioners are entitled to file a petition for discharge under Section 245(1) of Code of Criminal Procedure. In the nature of the case, if petitioners file an application under Section 205 of Code of Criminal Procedure, learned Magistrate not to insist on the presence of the petitioners till a decision is taken under Section 245(1) of Code of Criminal Procedure. Granting liberty to the petitioners to raise all contentions, petition is disposed of. M.SASIDHARAN NAMBIAR, JUDGE lgk