IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 26TH JUNE 2009 / 5TH ASHADHA 1931 Crl.MC.No. 2024 of 2009() ------------------------- CC.976/2006 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, PATHANAMTHITTA .................... PETITIONERS: DEFACTO COMPLAINANT & ACCUSED No.6 ---------------------- 1. CHANDRASEKHARA KURUP, AGED 69, S/O.RAGHAVAN NAIR, CHERUKARAPUTHEN VEETTIL HOUSE, NIRANNAKALAPPADI, NARANGANAM P.O., NARANGANAM VILLAGE, KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT. 2. PRAVEEN K.THOMAS, AGED 28, S/O.THOMAS ABRAHAM, KOCHUTHUNDIYIL, NARANGANAM P.O., NARANGANAM VILLAGE, KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT. BY ADV. SRI.P.HARIDAS RESPONDENT(S): STATE & COMPLAINANT ---------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. THE SUB INSPECTOR OF POLICE, ARANMULA. R1 AND R2 BY PUBLIC PROSECUTOR SRI.GIKKU JACOB. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 26/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: dkr M.SASIDHARAN NAMBIAR, J. ================== Crl.M.C. No. 2024 of 2009 ================== Dated this the 26th day of June, 2009. O R D E R First petitioner is the defacto complainant and second petitioner the sixth accused in C.C.No.976/2006 on the file of Judicial First Class Magistrate Court-I, Pathanamthitta. Prosecution case is that the six accused formed themselves into an unlawful assembly with the common object of causing hurt to the first petitioner and in furtherance of their common object, on 4-11-2005 at 2.55 PM when first petitioner was getting out of an autorickshaw, wrongly retrained him and thereafter inflicted injuries and thereby committed offences under Sections 143, 147, 341 and 323 read with Section 149 of Indian Penal Code. This petition is filed under Section 482 of Code of Criminal Procedure to quash the proceedings as against the sixth accused/second petitioner, who did not appear before the Magistrate. A non-bailable warrant is pending against him. The case of the petitioners is that second petitioner was not involved in the incident at all and Crl.M.C.No.2024/2009 -2- he was not named in the F.I.statement of the first petitioner and therefore there is no necessity to continue the prosecution as against the second petitioner and therefore invoking the extra-ordinary jurisdiction of this court under Section 482 of Code of Criminal Procedure, the case as against second petitioner is to be quashed. 2. Learned Counsel appearing for the petitioners and learned Public Prosecutor were heard. 3. Learned Counsel appearing for the petitioners submitted that second petitioner was not aware that he was implicated in that case and he was working in Gulf and returned only recently and then only he was aware that a non- bailable warrant is pending against him and as second petitioner is not involved in the case, the case as against him is to be quashed. Learned Counsel also submitted if it is not possible, second petitioner may be permitted to surrender before the Magistrate and file an application before the Magistrate for bail and also be permitted to move a petition under Section 320 of Code of Criminal Procedure. Crl.M.C.No.2024/2009 -3- 4. For the reason that name of the second petitioner is not mentioned in the F.I. statement, the case as against the second petitioner cannot be quashed. If the case of the petitioners is that there was a settlement of the dispute between first petitioner and second petitioner, it is for them to approach the learned Magistrate for compounding the offence under Section 320 of Code of Criminal Procedure, if the offences are compoundable. On the materials available, petitioners are not entitled to get the case quashed as against the second petitioner as sought for. Second petitioner is permitted to surrender before the Court and file an application for bail. When offences are compoundable, I do not find any reason to believe that learned Magistrate will not grant bail to the second petitioner. Petitioners are also entitled to move a petition under Section 320 of Code of Criminal Procedure. Petition is disposed accordingly. M.SASIDHARAN NAMBIAR JUDGE dkr