IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 26TH MAY 2011 / 5TH JYAISHTA 1933 Crl.MC.No. 310 of 2011() ------------------------------------ (CRIME NO.904/2010 OF TRICHUR WEST POLICE STATION,THRISSUR DISTRICT). ..... PETITIONER(S): ------------------------- SANTHA JOSEPH, W/O.JOSEPH, AGED 62, VELIYIL HOUSE, THUMPOLLY P.O., ALAPPUZHA. BY ADVS. SRI.K.C.CHARLES, SRI.M.POLY MATHAI, SRI.P.CHELLAPPAN, SRI.HARI MENON, SRI.VIMAL K.CHARLES, SMT.A.T.RENJU. RESPONDENT(S): ---------------------------- 1. STATE OF KERALA REPRESENTED BY THE SUB INSPECTOR OF POLICE, THRISSUR WEST POLICE STATION, THRISSUR. 2. SHYLAJA, FATHER'S NAME NOT KNOWN TO THE PETITIONER, AGED 33, PULICKAL VEETTIL, VIDYA NAGAR, THRIKKUMARAM KUDAM, AYYANTHOLE P.O., THRISSUR-3. R1 BY PUBLIC PROSECUTOR SRI. MANU R2 BY ADVS. SRI.P.SANTHOSH (PODUVAL), SMT.R.RAJITHA. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 26/05/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss THOMAS P. JOSEPH, J. -------------------------------------- Crl.M.C. No.310 of 2011 -------------------------------------- Dated this the 26th day of May, 2011. ORDER Petitioner is one of the accused in Crime No.904 of 2010 of Thrissur West Police Station for offence punishable under Section 379 of the Indian Penal Code (for short, “the IPC”). According to the second respondent/defacto complainant, she is the lawfully wedded wife of the son of petitioner, car involved in the case belonged to her husband and since his death she is in absolute possession and enjoyment of the said vehicle as its owner. While so, petitioner and others committed theft of the said vehicle. Second respondent filed a complaint based on which the Police registered a case and the matter is under investigation. Petitioner challenges the complaint as well as the FIR. Learned counsel contended that petitioner is the sole legal heir of her son there was no lawful marriage between her son and the second respondent and consequent to the death of her son, ownership of the car vested with her. It is contended that even if the case of second respondent is accepted, the second respondent is only a co-owner of the car along with petitioner in which case she has constructive possession of the car even if it was in the actual custody of the second respondent. In the said situation if at all petitioner has removed the car, that does not attract the offence under Section 379 of the IPC. On the above contentions it is prayed that complaint and FIR may be quashed. Learned counsel for second respondent contended that there is a valid marriage between Crl.MC No.310/2011 2 second respondent and the son of petitioner and that even if it is argued that petitioner is also a legal heir of the son, the car was in the absolute and independent possession of the second respondent and hence removal of the car from her possession amounted to theft as defined under Section 378 of the IPC as such removal was with dishonest intention. 2. Learned Public Prosecutor has submitted that the matter is pending investigation. In such a situation, it is open to the investigating agency to look into various aspects of the matter and conclude whether allegation of theft is correct or not. Assuming that the Police submitted final report alleging that petitioner or anybody committed theft it is open to the petitioner to plead discharge on the contentions raised by her. I find no reason to interfere in the matter, pending investigation. 3. Learned counsel for petitioner submitted that petitioner is aged about 62 years is residing at Thumboli and she may be permitted to appear through counsel. In the circumstances stated, it is made clear that it is open to the petitioner to plead discharge in absentia appearing through counsel. The question of permanent exemption if any, is a matter which the learned Magistrate has to decide having regard to all relevant aspects of the matter including question of identity if any, the age of petitioner and her place of residence. Crl.MC No.310/2011 3 Resultantly this Criminal Miscellaneous Case is closed without prejudice to the right of petitioner to plead discharge in case Police after investigation submitted final report against petitioner. If such a contingency arises it is open to the petitioner to plead discharge in absentia appearing through counsel. The Investigating Officer is directed to complete investigation and submit report as early as possible. THOMAS P.JOSEPH, Judge. cks