IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 7TH FEBRUARY 2011 / 18TH MAGHA 1932 Crl.MC.No. 350 of 2011() ------------------------ CC.758/2007 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, NEYYATTINKARA .................... PETITIONER(S): ACCUSED NO.2: -------------------------------------------------- SALIN RAJ, AGED 34 YEARS, S/O.JOSEPH, KEEZHVILAKATH SNEHABHAVAN, KODAVILAKAM, MURIYANKARA DESOM, PARASALA, THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.MATHEW KURIAKOSE RESPONDENT(S): STATE & COMPLAINANT: ----------------------------------------------------------------- 1. STATE OF KERALA, (CRIME NO.272/2007 OF PARASALA POLICE STATION), REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-31. 2. SASI, AGED 46 YEARS, S/O.CHERIYAN NADAR, PUTHENVEETTIL, KODAVILAKAM, MURIYANKARA DESOM, PARASALA, THIRUVANANTHAPURAM DISTRICT-695 502. R1 BY PUBLIC PROSECUTOR SMT. M.K.PUSHPALATHA THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 07/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss THOMAS P JOSEPH, J. ---------------------------------------- Crl.M.C.No.350 of 2011 --------------------------------------- Dated this 07th day of February, 2011 ORDER Petitioner is the second accused in Crime No.272 of 2007 of Parasala Police Station and C.C.No.758 of 2007 of the court of learned Judicial First Class Magistrate-II, Neyyattinkara facing trail for offences punishable under Secs.324 and 326 r/w Sec.34 of the Penal Code. It is contended in this petition that charge against petitioner in Annexure-B, final report is false as could be revealed from various records and in such a situation petitioner may not be asked to face the trial. Learned counsel has taken me through the materials produced along with the petition. I have heard learned Public Prosecutor also. 2. It would appear that there was a civil dispute between petitioner and the de facto complainant. It would also appear that de facto complainant allegedly demolished compound wall of petitioner. There was a criminal complaint also. While so, alleged incident occurred on 26.06.2007 at about 8 p.m (as per the final report). It is alleged that petitioner and first accused assaulted respondent No.2, the de facto complainant with iron rod and caused hurt/grievous hurt. Learned counsel submitted Crl.M.C.No.350 of 2011 -: 2 :- that the allegations are false and that on account of previous enmity, petitioner has been falsely framed in the case. It is contended that as per Annexure-B, final report the alleged incident occurred on 8p.m but Annexure-B(17) copy of wound certificate shows that respondent No.2 was brought to the hospital which according to the petitioner is just 2km away from the alleged occurrence only at 10p.m. It is also pointed out is that Annexure-B(17), wound certificate it is stated that second respondent who was lying on the road was brought to the hospital by Autorikshaw driver. It is pointed out that in the wound certificate that cause of injury is stated as due to assault by Thekkupara Satyan (accused No.1) with iron road on 26.06.2007 at about 8 p.m and that the second respondent had smell of alcohol at that time. It is the contention of learned counsel that if petitioner had assaulted the second respondent, there was no reason why the name of petitioner was not mentioned by the second respondent in Annexure-B(17), wound certificate. Learned counsel has invited my attention to the statement of wife of second respondent and the witnesses which according to learned counsel would show that those witnesses who are coolie workers are said to have taken the second Crl.M.C.No.350 of 2011 -: 3 :- respondent to the hospital. Instead in the wound certificate the statement is that second respondent was brought to the hospital by Autorikshaw driver. It is further contended that even as per the statement of the so called independent witnesses they had allegedly seen the incident in the light of the street light and learned that second respondent was assaulted by the petitioner and first accused. 3. It is true that the alleged incident occurred on 26.06.2007 at about 8p.m and the private complaint was preferred only a week thereafter which was sent for investigation under Sec.156(3) of the Code of Criminal Procedure and which resulted in Annexure-A, FIR and Annexure-B, final report. It is seen from the statement of witnesses that they had heard, at the time of the incident one of the assailants saying that “you have demolished my compound wall” and the other saying “you have demolished the compound wall of Salim Raj'. Now the prayer is to quash Annexure-B, final report as if the allegations are false. It is based on the materials collected in the investigation that petitioner was also included as an accused in the case. Whether delay in filing the complaint is fatal, second respondent suffered an injury in any other manner than what is alleged in Annexure-B Crl.M.C.No.350 of 2011 -: 4 :- and whether petitioner is involved in the alleged incident are all matters to be revealed in the trial. I must bear in mind that by sound also there could be identification of the assailants by persons acquainted to them. It is also a matter to be ascertained in evidence who gave the information regarding cause of injury while preparing the wound certificate. These are all matters which are required to be brought out in the trial. 4. In a proceeding under Sec.482 of the Code of Criminal Procedure, this Court cannot go into the truth of the allegations contained. What is required to be seen is whether proceeding is an abuse of the process of Court. Having regard to the materials on record I am not inclined to say so. Hence the request to quash the final report cannot be accepted. But I make it clear that learned Magistrate shall dispose of the case untrammeled by any observation contained herein which is confined to the disposal of this petition alone. With the above observation this criminal miscellaneous case is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-