IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 1ST MARCH 2010 / 10TH PHALGUNA 1931 Crl.MC.No. 510 of 2008(C) ------------------------------------ [CC.NO.210/2003 OF JUDL.MAGISTRATE OF FIRST CLASS COURT, NADAPURAM] .................... PETITIONER/2ND ACCUSED: ----------------------------------------- VADAKKAYIL ASHRAF, S/O. POKKER HAJI, VADAKKAYIL HOUSE, EYYAMKODE, AVOLAM, NADAPURAM. BY ADV. MR.T.G.RAJENDRAN. RESPONDENT/COMPLAINANT & STATE: ---------------------------------------------------------- 1. SAKEENA W/O. AZEEZ, OTTAPILAKUL HOUSE, VADAKARA TALUK, NADAPURAM. 2. SUB INSPECTOR OF POLICE, NADAPURAM POLICE STATION. 3. STATE, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 & R2 BY PUBLIC PROSECUTOR MR. S.U. NAZAR. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 01/03/2010,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO.510 OF 2008 ------------------------------------------ Dated 1st March 2010 O R D E R Petitioner is the second accused in C.C.210/2003 on the file of Judicial First Class Magistrate Court, Nadapuram. Based on the First Information Statement of the first respondent, Crime 279/2002 was originally registered for the offence under sections 143, 147, 341, 323, 354, 506(i) read with section 149 of Indian Penal Code. As seen from Ext.P1, case of the first respondent was that on 25.9.2002 at about 8.30 a.m first accused Kunhammad Haji and five others who are known to him by sight came to their paramba and tried to remove the soil and when it was questioned by the first respondent and her sister Shameena, first accused Kuhammed Hajee pushed her and Crmc 510/08 2 when she was about to fall, Shameena her sister tried to help her and then first accused caught hold of her hair and pushed her and made her to fall and then the accused threatened them that if they are to cause obstruction they will be killed and the neighbours rushed there and brought them to Government Hospital, Nadapuram. After investigation Annexure-II final refer report was submitted that the case is false. First respondent thereafter filed Annexure-III complaint before learned Magistrate which was taken cognizance as C.C.210/2003. Petitioner thereafter filed Crl.M.C.4560/2003 under Section 482 of Code of Criminal Procedure to quash the cognizance taken. When the petition was heard, learned counsel appearing for the petitioner sought permission to withdraw the petition with liberty to raise the contention before the trial court. By Annexure-V order Crmc 510/08 3 permission was granted to withdraw the petition with liberty to raise the contention before the Magistrate. Petitioner thereafter filed this petition under Section 482 of Code of Criminal Procedure, to quash the final report contending that Crl.M.C.4560/2003 was withdrawn due to inadvertent omission. Petitioner has raised the same contentions raised in the earlier Crl.M.C. Though notice was served on the first respondent, she did not appear. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. Though learned counsel appearing for the petitioner vehemently argued that entire allegations raised in Annexure-III complaint cannot be believed and even if, it is accepted, there is no possibility of entering a finding that petitioner is guilty Crmc 510/08 4 and so the case is to be quashed, on going through Annexure-III complaint, I cannot agree with the submission. Annexure-III complaint contains the necessary recitals constituting the offence taken cognizance by the learned Magistrate. This court cannot appreciate the evidence and thereafter quash the complaint or the cognizance taken, as canvassed by the learned counsel. It is upto the petitioner to raise the contentions at the time of trial and it is for the learned Magistrate to decide whether evidence of the complainant and the witnesses can be accepted or not. With liberty to raise all the contentions before the learned Magistrate, petition is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.