IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI WEDNESDAY, THE 20TH AUGUST 2008 / 29TH SRAVANA 1930 Crl.MC.No. 27 of 2006 ------------------------------ CC.29/2005 OF CHIEF JUDICIAL MAGISTRATE COURT, KOLLAM .................... PETITIONER/ ACCUSED NO.1: ------------------------------------------- DHANAPALAN, S/O.RAMACHANDRAN (P.C.3681), ANANDAMANDIRAM, ULIYAKKOVIL, KADAPPAKKADA, WARD NO.XIII, KOLLAM EAST VILLAGE. BY ADV. SRI.C.RAJENDRAN. RESPONDENTS/ COMPLAINANT/ STATE: ---------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY SUB INSPECTOR OF POLICE, KOLLAM EAST POLICE STATION, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. LATHIEFKHAN, S/O.HAMEEDURAUTHER, ADAKKAMANPUTHAN VEEDU, KARIMPALLOOR MURI, PURAVANTHOOR. BY PUBLIC PROSECUTOR SRI. C.M. KAMMAPPU. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 20/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. V.GIRI, J. ------------------------- Cr.M.C.No.27 of 2006 E ------------------------- Dated this the 20th day of August, 2008. JUDGMENT The first accused in C.C.NO.29/05 on the file of the Chief Judicial Magistrate, Kollam, is the petitioner in this application filed under Section 482 of the Code of Criminal Procedure. 2. C.C.NO.29/05 arises out of a protest complaint filed by the 2nd respondent herein against three accused alleging offences punishable under Sections 323, 342, 294(b), 506(2) read with Section 34 of the Indian Penal Code. 3. The 2nd respondent had initially filed a private complaint before the Chief Judicial Magistrate, Kollam against the petitioner and two others for the aforesaid offences. Learned Chief Judicial Magistrate referred the said complaint to the police for investigation under Section 156(3) of the Cr.P.C. The Kollam Police had registered Cr.M.C.No.27 of 2006 :: 2 :: a crime as Crime No.629/02 of the Kollam East Police Station. Investigation was conducted and the police filed a refer report. Thereupon, Annexure A complaint was filed by the complainant. 4. The incident, as stated by the complainant in Annexure A, in brief, is as follows: “The 2nd respondent in this petition, who is the de facto complainant, is married to one Safia. They have a daughter named Monisha, now aged 17 years. Apparently, accused 2 and 3, who are related to the de facto complainant, had forcibly taken away Safia, the wife of the de facto complainant, to get her admitted in a mental hospital. This was without the willingness and consent of the husband-the de facto complainant. Coming to know of this incident, the de facto complainant rushed to the hospital and he hurled abusive words against accused 2 and 3. On information being given to the police by the hospital authorities, a police Cr.M.C.No.27 of 2006 :: 3 :: constable attached to the Kollam East Police Station rushed to the spot. The complainant was arrested and taken to the police station.” 5. The allegation in the protest complaint is that the first accused assaulted him and had also criminally intimidated him. He was kept in the lock up for two days and thereafter he was released. 6. In challenging the protest complaint and the proceedings of the court below by which cognizance has been taken, learned counsel for the petitioner Mr.Rajendran submits that, at least, insofar as the first accused is concerned, the entire proceedings are to be treated as an abuse of process of law. He submits that after all if the first accused had taken the complainant to the police station, without any justification and had also assaulted him, there was no reason why the complainant should have waited for almost two years for filing the protest complaint as such. He Cr.M.C.No.27 of 2006 :: 4 :: further submits that Section 506(2) Indian Penal Code has been introduced into the complaint only for the purpose of saving the period of limitation, provided under Section 468 of the Cr.P.C., which otherwise, would have applied in relation to the offences under Section 323 and 342 of the IPC. Referring to Annexure A protest complaint, he points out that even if the allegations in Annexure A are true, the necessary ingredients for making out an offence under Section 506 IPC are absent in the complaint. 7. Since the offence under Section 506(2) IPC has been alleged in Annexure A, obviously, the court will have to proceed with it as a warrant case and charges will have to be framed if the court below finds that there are sufficient grounds. In such circumstances, I think, it is only appropriate that the petitioner moves an application for discharge and if it is so moved, the court below shall consider the Cr.M.C.No.27 of 2006 :: 5 :: same. The court below shall also consider whether the ingredients of the offences under Sections 506 and 506(2) have been made out and if there is any material to link the petitioner with the same. Obviously, the court below is also entitled to take note of the contention that the offence under Section 506 has been introduced only to save the period of limitation that is provided under Section 468 of the Cr.P.C. In these circumstances, on a reading of Annexure A complaint as such, I am not satisfied that this is one of the exceptional cases where the proceedings should be quashed in exercise of the powers available under Section 482 of the Cr.P.C. 8. Learned counsel for the petitioner refers to the judgment of the Supreme Court reported in Som Mittal v. Government of Karnataka {2008(2) KHC 269}. The Supreme Court had referred to the earlier decision of the Supreme Court in Bhachan Singh v. State Cr.M.C.No.27 of 2006 :: 6 :: of Punjab {AIR 1980 SC 898} laying down the circumstances where the court should exercise its powers under Section 482 of the Cr.P.C. I am not satisfied that this is one of those rare cases which justifies the invocation of the powers under Section 482 Cr.P.C., to quash the protest complaint or the proceedings of the court by which cognizance has been taken. 9. In such circumstances, it is made clear that if the petitioner moves an application for discharge, as permitted in law, the court below shall proceed to consider and pass orders as expeditiously as possible. Subject to the above, Crl.M.C. is disposed of. Sd/- (V.GIRI) JUDGE sk/ //true copy// P.S. To Judge