IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 23RD JULY 2009 / 1ST SRAVANA 1931 Crl.MC.No. 2071 of 2009 --------------------------------- CC.595/2007 OF JUDICIAL FIRST CLASS MAGISTRATE, KOTHAMANGALAM ........................................... PETITIONER(S): ACCUSED - 1 TO 3 ------------------------------------------------- 1. SHEJI @ SOLY, AGED 42 YEARS, S/O.JACOB, R/AT KATTARUKUDIYIL HOUSE, THEKKEPUNNAMATTOM KARA, KADAVOOR VILLAGE, KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT. 2. SIJO, AGED 28 YEARS, S/O.JOSEPH, R/AT KATTARUKUDIYIL HOUSE, NADUVAKKADU KARA, KADAVOOR VILLAGE, KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT. 3. ARUN JOSEPH, AGED 37 YEARS, S/O.JOSEPH, R/AT MARUTHANAMKUZHIYIL HOUSE, PAINGOTTOOR KARA, KADAVOOR VILLAGE, KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT. BY ADV. SRI.M.P.MADHAVANKUTTY SRI.AJEESH S.BRITE RESPONDENT(S)/COMPLAINANTS: ------------------------------------------------ SUB INSPECTOR OF POLICE, POTHANICAD POLICE STATION, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. AMJAD ALI THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 23/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No.2071 OF 2009 =========================== Dated this the 23rd day of July,2009 ORDER Petitioners are the accused in C.C.595/2007 on the file of Judicial First Class Magistrate, Kothamangalam. This petition is filed under section 482 of Code of Criminal Procedure to quash Annexure 2 final report taken cognizance by the learned Magistrate for the offence under section 3(2) (e) of Prevention of Damage to Public Property Act,1984. 2. Learned counsel appearing for the petitioners and the learned Public Prosecutor were heard. 3. Relying on the decision of this Court in Kannan v. State of Kerala (2005(4) KLT SN.14(Case No.16) it was argued that in the absence of specific allegation that petitioners committed any particular overt act, no proceedings under the Prevention of Damage to Public Property Act is maintainable and as there is no such specific allegation in Annexure 2 charge, the final report is liable to be quashed. Learned Public Prosecutor pointed out that in the statement recorded under section 161 of Code of Crl.M.C.2071/2009 2 Criminal Procedure overt act by the petitioners have been specifically mentioned and therefore for the reason that in the final report it is not specifically alleged the final report cannot be quashed. There is force in the submission of the learned Public Prosecutor. The charge is to be framed by the concerned Magistrate based on the final report as well as the materials produced along with it , including the statements recorded under section 161 of Code of Criminal Procedure. In such circumstance, the final report cannot be quashed as sought for. Petitioners are entitled to agitate this question before framing the charge and are also entitled to file an application under section 239 of Code of Criminal Procedure for discharge. Learned counsel appearing for the petitioner submitted that for the purpose of deciding the petition under section 239 of Code of Criminal Procedure, presence of the petitioners may not be insisted. If petitioners file an application under section 205 of the Code of Criminal Procedure, learned Magistrate to consider the same and pass appropriate orders in accordance with law. Petition is disposed. M.SASIDHARAN NAMBIAR JUDGE tpl/- Crl.M.C.2071/2009 3 M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006