IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 1ST FEBRUARY 2011 / 12TH MAGHA 1932 Crl.MC.No. 316 of 2011() ----------------------------------- CC.113/2009 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, THAMARASSERY .................... PETITIONERS/ACCUSED 1, 2 & 3: ------------------------------------------------ 1. M.M. MATHEW, AGED 72 YEARS, S/O.MATHAI, MANAPURATH HOUSE, THIRUVAMPADI AMSOM, DESOM, KOZHIKODE DISTRICT. 2. THRESSIAKUTTY MATHEW, AGED 62 YEARS, W/O.M.M. MATHEW, MANAPURATH HOUSE, THIRUVAMPADI AMSOM, DESOM, KOZHIKODE DISTRICT. 3. JIJI MATHEW, AGED 35 YEARS, D/O.M.M. MATHEW, MANAPURATH HOUSE, THIRUVAMPADI AMSOM, DESOM, KOZHIKODE DISTRICT. (PETITIONERS 1 & 2 ARE REPRESENTED BY THEIR POWER OF ATTORNEY HOLDER, SMT.JIJI MATHEW, THE 3RD PETITIONER). BY SRI.JIJI MATHEW (PARTY IN PERSON) RESPONDENT/COMPLAINANT: --------------------------------------------- STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR.SABU SREEDHARAN. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 01/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs THOMAS P JOSEPH, J. ---------------------------------------- Crl.M.C.No.316 of 2011 --------------------------------------- Dated this 01st day of February, 2011 ORDER Heard petitioner who appeared in person and the learned Public Prosecutor. 2. Challenge is to Annexure-III, order passed by the learned learned Judicial First Class Magistrate-II, Thamarassery on January 14, 2011 in C.C.No.113 of 2009. Learned Magistrate has directed petitioner to appear before the Civil Surgeon of the District on February 18, 2011 for examination under Sec.328 of the Code of Criminal Procedure (for short, "the Code”). Petitioner submits that Annexure-III, order is not correct in view of the decision in Shanker Vs. State of Himachal Pradesh (1972 (11) SCWR 580). I have heard learned Public Prosecutor also. 3. In the decision cited above it is held that the Magistrate must have reason to believe that an enquiry is required under Sec.328 of the Code before ordering such an enquiry. Learned Magistrate has observed in the impugned order that petitioner was conducting the case as party in person and that from the conduct and behaviour of petitioner, there was every reason to believe that petitioner on account of mental Crl.M.C.No.316 of 2011 -: 2 :- imbalance is incapable of making her defence and hence it is necessary to conduct an enquiry under Sec.328 of the Code. As part of that enquiry learned Magistrate has directed petitioner to appear before the District Civil Surgeon, Kozhikode on any day before 18.02.2011. 4. Though, petitioner argued that the said order is not correct, I do not find reason to interfere since the order shows that on account of the conduct and behaviour of petitioner in court learned Magistrate had reason to believe that an enquiry under Sec.328 of the Code is required. Learned Magistrate has made an objective satisfaction from the situation and came to the conclusion that enquiry is required. Hence I do not find reason to interfere. 4. Petitioner submits that on account of other engagements such as appearing in various other cases she is not able to appear before the Civil Surgeon before 18.02.2011. Having regard to that grievance of petitioner, it is only appropriate that learned Magistrate is directed to re-fix the date for appearance of petitioner before the Civil Surgeon after considering the convenience of petitioner also. Crl.M.C.No.316 of 2011 -: 3 :- Resultantly this criminal miscellaneous case is disposed of directing the learned Magistrate to re-fix the date for appearance of petitioner before the Civil Surgeon, Kozhikode District to a day after considering convenience of petitioner also but bearing in mind that the proceeding in the case is not unduly prolonged. (THOMAS P JOSEPH, JUDGE) Sbna/- /True Copy/ P.A to Judge