IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 16TH SEPTEMBER 2009 / 25TH BHADRA 1931 Crl.MC.No. 1197 of 2009(F) ------------------------------------- [CC.NO.127/2008 OF JUDL.MAGISTRATE OF FIRST CLASS COURT, ALATHUR) .................... PETITIONER2/A1 TO 5: -------------------------------- 1. SHAJAHAN, AGED 35 YEARS, S/O.P.K.ABDUL KHADER, THRIPPALLUR PALLATHU HOUSE, ALATHUR TALUK. 2. ABDUL SALEEM, AGED 42 YEARS, S/O.P.K.ABDUL KHADER, THRIPPALLUR PALLATHU HOUSE, ALATHUR TALUK. 3. SAINABA,AGED 65 YEARS, W/O.ABDUL KHADER, THRIPPALLUR PALLATHU HOUSE, ALATHUR TALUK. 4. ABDUL KHADER, AGED 75 YEARS, S/O.KHADER RAWUTHER,THRIPPALLUR PALLATHU HOUSE, ALATHUR TALUK. 5. T.B.HAMSA, S/O.LATE BAVA, BHAVANA NILAYAM, THONIPPADAM, VAVULLAPURAM, ALATHUR TALUK. BY ADV. MR.P.VIJAYA BHANU. RESPONDENTS/ COMPLAINANT AND STATE: ----------------------------------------------------------------- 1. ABDUL NAZAR ,AGED 46 YEARS S/O.LATE MUHAMMED, THRIPPALLUR PALLATHU HOUSE, ALATHUR TALUK. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. MR.VINOD KUMAR.C, R2 BY PUBLIC PROSECUTOR MR. AMJAD ALI. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 16/09/2009,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No.1197 OF 2009 =========================== Dated this the 16th day of September,2009 ORDER Petitioners are accused in C.C.127/2008 on the file of Judicial First Class Magistrate, Alathur. This petition is filed under section 482 of Code of Criminal Procedure to quash the cognizance taken on the protest complaint, contending that learned Magistrate has not applied his mind while taking cognizance and omitted to take note of the fact that as per the final report submitted after investigation, cognizance was taken as against one of the accused against whom also cognizance was taken in C.C.127/2008. Learned counsel made available the order sheet of the C.C.127/2008, which shows that after recording the sworn statements of the first respondent complainant and two witnesses learned Magistrate has taken cognizance of the offence. 2. Learned counsel appearing for the petitioners submitted that the learned Magistrate has not taken into consideration the final report, based on which cognizance was taken as against one of the accused, and mechanically took cognizance of the offences and Crl.M.C.1197/2009 2 therefore the proceedings is to be quashed. Learned counsel appearing for the first respondent submitted that petitioners are entitled to raise all the contentions at the stage of hearing under section 245 of Code of Criminal Procedure. 3. The order sheet shows that learned Magistrate has taken cognizance of the offences after applying his mind. After recording reasons cognizance was not taken for the offences under section 294(b) and 506 (i) of Indian Penal Code finding that the sworn statement of the complainant and the witnesses do not disclose the ingredients of the said offences. In such circumstance, I find no reason to quash the cognizance taken, as sought for by the petitioners especially when petitioners are entitled to raise all the contentions before the learned Magistrate after recording the evidence of the complainant and his witnesses as provided under section 244 of Code of Criminal Procedure. After recording the evidence of the complainant, learned Magistrate is bound to hear the petitioners also and only if it is found that petitioners are not liable to discharged under section 245 charge can be framed as provided under sub section (1) of Section 246 of Code of Criminal Procedure. In such circumstance, with liberty to the petitioners to raise all the contentions at Crl.M.C.1197/2009 3 the stage of hearing under section 245 of Code of Criminal Procedure, the petition is disposed . Learned counsel appearing for the petitioners then submitted that presence of the petitioners may be dispensed with for the purpose of seeking an order of discharge. Considering the nature of the case and the offences alleged, petitioners are permitted to file an application before the learned Magistrate, to dispense with their presence for the purpose of filing an application under section 245 of Code of Criminal Procedure for discharge. If the petition is filed, Magistrate shall not insist for the personal presence of the accused. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006