IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 29TH OCTOBER 2008 / 7TH KARTHIKA 1930 Crl.MC.No. 4076 of 2008() -------------------------------------- C.C.NO.623/2007 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, PAYYANNUR. ............... (CRIME NO.219/2005 OF PAYANGADI POLICE STATION) PETITIONER(S): 2 & 3RD ACCUSED: ----------------------------------------------------- 1. P.MUSAMMAL, AGED 23 YEARS, S/O.ABDUL KAREEM,MADAYI AMSOM PUTHIYANGADI, PAYYANNUR. 2. MUTHALIB,AGED 23 YEARS, S/O.AHMAD HAJI,MADAYI AMSOM, PUTHIYANGADI, PAYYANNUR. BY ADV. SRI.T.K.VIPINDAS RESPONDENT(S): ------------------------------- THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA REPRESENTING THE S.H.O.PAYYANNUR. BY PUBLIC PROSECUTOR SRI. GIKKU JACOB THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 29/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss R. BASANT, J. ------------------------------------------------- Crl.M.C. No.4076 of 2008 ------------------------------------------------- Dated this the 29th day of October, 2008 ORDER The petitioners are accused 2 and 3 and they, along with the co-accused (A1), face allegations for offences punishable under Secs.341, 323 and 324 read with Sec.34 IPC. Final report has already been filed by the police. Cognizance was taken. The petitioners were not available for trial. The trial against the 1st accused proceeded. The first accused was found not guilty and acquitted. The case against the petitioners has been split up and re-filed. The same is pending before the learned Judicial Magistrate of the First Class, Payyannur, as C.C.No.623/07. 2. At this stage, the petitioners have come before this Court to apprise this Court of the fact that the de facto complainant has compounded the offences allegedly committed Crl.M.C. No.4076 of 2008 -: 2 :- by them. All offences are compoundable under Sec.320 Cr.P.C. As the de facto complainant is not available in India, and is at present in a Gulf country, the presence of the de facto complainant cannot be secured. It is hence that the petitioners have come before this Court with a prayer to invoke the extraordinary inherent jurisdiction under Sec.482 Cr.P.C. 3. It is for the de facto complainant to compound the offences allegedly committed by the petitioners and report such composition before the learned Magistrate. When such report of composition is made, the learned Magistrate must consider such prayer and pass appropriate orders. It has already been held by this Court in Baiju v. State of Kerala (2007 (4) KLT 1082) that it is not necessary to insist on the personal presence of the accused persons when composition is effected. The learned counsel submits that it is the de facto complainant who is not available in India now and is unable to appear before the learned Magistrate. 4. It is for the de facto complainant to make appropriate application before the learned Magistrate and explain to the learned Magistrate why he is not able to appear personally. The de facto complainant must place sufficient materials before the learned Magistrate to convince the learned Magistrate that the Crl.M.C. No.4076 of 2008 -: 3 :- disputes have been settled by the parties and the offences compounded by him. If the learned Magistrate can entertain the requisite satisfaction that the complainant has compounded the offences allegedly committed by the petitioners, certainly the application for composition can be considered by the learned Magistrate on merits without insisting on his personal presence. 5. At any rate, without and before approaching the learned Magistrate with a prayer for composition, I find no merit in the present prayer made by the petitioners for issue of directions under Sec.482 Cr.P.C. Appropriate application for composition must be filed before the learned Magistrate and orders must be solicited. If the petitioners are not satisfied with such orders, needless to say, their avenues for challenge shall remain unfettered by the dismissal of this Crl.M.C. 6. With the above observations, this Crl.M.C. is dismissed. (R. BASANT, JUDGE) Nan/ Crl.M.C. No.4076 of 2008 -: 4 :-