IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER FRIDAY, THE 18TH DECEMBER 2009 / 27TH AGRAHAYANA 1931 Crl.MC.No. 744 of 2006(C) ------------------------- CC.292/2001 of JUDL. MAGISTRATE OF FIRST CLASS COURT II, NEYYATTINKARA ................... PETITIONER(S): --------------- 1. SOMARAJAN @ SATHYAN, SON OF HANOOK NADAR KAVERI VILAKAM HOUSE, MULLOR DESOM, VIZHINJAM VILLAGE, THIRUVANANTHAPURAM DISTRICT. 2. RAJENDRAN @ MANIYAN, DO. 3. VIJAYAN, SON OF BHAVANIKRISHNA NADAR, MULLOOR DESOM, VIZHINJAM VILLAGE, THIRUVANANTHAPURAM DISTRICT. 4. RAJAN, SON OF SIVARAMAN NADAR, MEKKARIVU BUNGALOW, KAVERI VILAKAM, MULLOOR DESOM, VIZHINJAM VILLAGE. 5. SURESH, DO. DO. 6. SUNIL KUMAR, DO. DO. 7. RAMACHANDRAN, SON OF KOCHAN NADAR, ARJUN SADANAM, MULLOOR DESOM, VIZHINJAM VILLAGE. BY ADV. SRI.P.R.VENKETESH SRI.P.R.RAJA RESPONDENT(S): ------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SUNILKUMAR, SON OF SIVASANGARAN NAIR, KOMALA MANDIRAM, KALANGUNADA, MULLOOR DESOM, VIZHINJAM VILLAGE, THIRUVANANTHAPURAM DISTRICT. PUBLIC PROSECUTOR SRI.MUHAMMED PUZHAKKARA. SRI.G.S.REGHUNATH FOR R2 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 18/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K. Basheer, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.M.C. 744 of 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 18th day of December, 2009. ORDER Petitioners are facing trial for the offences punishable under Sections 143, 147, 148, 149, 447, 427, 188 and 506 (ii) of the Indian Penal Code in a private complaint filed by respondent No.2 herein in C.C.No.292/2001, on the file of the Judicial Magistrate of First Class, No.II, Neyyattinkara. 2. The gist of the allegations against them is that they had trespassed into the residential compound of the complainant at about 12.30 AM on 4/10/1998 and caused extensive damage to the compound wall and other structures therein resulting in a loss of Rs. 30,000/-. Annexure A4 is stated to be the certified copy of the memo of charges framed by the court below against the petitioners. 3. Petitioners have filed this petition under Section 482 of the Code of Criminal Procedure seeking to quash the above proceedings. 4. I have heard learned counsel for the petitioner and the learned counsel for respondent No.2. 5. It is beyond controversy that Vizhinjam Police had registered crime No.197/98 against the petitioners in respect of the very same incident. All the offences for which the petitioners are now facing trial in CC.No.292/2001 were incorporated in the charge laid by the Police in Crime No.197/98 also. The said case is pending in CC.No.39/1999 Crl.MC.744/2006. 2 on the file of the same Court at Neyyattinkara. 6. But respondent No.2/complainant has preferred the present complaint (Annexure A3) alleging infirmities in the Police investigation and contending that the offence under Section 379 IPC has been wilfully omitted to be incorporated. It is further alleged that some of the material witnesses have been omitted to be questioned by the Police. Annexure A3 complaint was filed after the Police had filed a refer report on completion of the investigation pursuant to an order passed by the court under Section 156(3) of the Code of Criminal Procedure. This protest complaint was taken on file by the learned Magistrate and process was issued to the petitioners/accused after examining the complainant. But significantly, the learned Magistrate did not choose to issue process to the petitioners for the charge under Section 379 IPC. In other words, only those offences which were incorporated in the crime registered by the police were yet again taken cognizance of by the learned Magistrate in the protest complaint also. 7. I have carefully perused Annexure A3 and I am satisfied that the incident in relation to which the protest complaint has been filed is none other than the very same incident which is the subject matter of the crime registered by the Police (CC.39/1999). 8. It is contended by learned counsel for respondent No.2 that the protest complaint was necessitated since the police had omitted to question some material witnesses. While conceding that section 379 IPC has not been incorporated in the charge now framed by the trial Crl.MC.744/2006. 3 court in the protest complaint, learned counsel contends that the complainant will atleast get an opportunity to examine his witnesses in the complaint and therefore the action of the learned Magistrate cannot be faulted. I am unable to agree. In my view, the procedure adopted by the court below is totally irregular and illegal. Therefore I have no hesitation to quash the proceedings in CC.No.292/2001. I do so. 9. However it is made clear that it will be open to respondent No.2 to examine his witnesses, if any, while entering on his defence in CC.No.39/99 now pending on the file of the same court. The court below shall afford sufficient opportunity to examine those witnesses if such a request is made by respondent no.2 at the defence stage. With these observations and directions, the Crl.M.C is disposed of. A.K. BASHEER Judge. an.