IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 14TH MARCH 2011 / 23RD PHALGUNA 1932 Crl.MC.No. 5036 of 2010 -------------------------------- CC.462/2010 of CHIEF JUDICIAL MAGISTRATE, KASARAGOD .................... PETITIONERS(S): ACCUSED 1, 3 & 5 ------------------------ * 1. M.P. ABDULLA, AGED 72 YEARS, S/O. LATE ABBAS, R/AT PODIPALLAM KANIYADUKA CHERKALA, CHENGALA POST, KASARAGOD TALUK. 2. MOHAMMED, AGED 35 YEARS, S/O. M.P. ABDULLA (A1), R/AT PODIPALLAM KANIYADUKA, CHERKALA, CHENGALA POST, KASARAGOD TALUK. 3. B. UMESH RAO, S/O. NARAYANA RAO, DOCUMENT WRITER, BEACH ROAD, KASABA VILLAGE, KASARAGOD. * First petitioner is deleted from the party array as per order dated 24.2.2011 in Crl.M.A.No.1051 of 2011 in Crl.M.C.No.5036 of 2010. BY ADV. SRI.T.SETHUMADHAVAN SRI.PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR SMT.VANDANA MENON SMT.ANJU P.NAIR RESPONDENTS(S): COMPLAINANT AND STATE ---------------------------- 1. K. HASSAINAR, AGED ABOUT 54 YEARS, S/O. LATE ABBAS, BAMBRANI NAGAR, MUTTATHODY VILLAGE, CHENGALA POST, KASARAGOD TALUK. 2. STATE OF KERALA, REPRESENTED BY THE DIRECTOR OF PUBLIC PROSECUTIONS, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SMT.REKHA.C.NAYAR. SRI.BECHU KURIAN THOMAS FOR R1 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 14/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN,J. ---------------------------------------------------------- Crl.M.C.No. 5036 of 2010 --------------------------------------------------------- Dated this the 14th day of March,2011 O R D E R Originally, the above Crl.M.C. is filed by accused Nos.1,3 and 5 in C.C.No.462 of 2010 on the file of the Chief Judicial Magistrate Court, Kasaragod. During the pendency of the above Crl.M.C., the first petitioner, who is the first accused in the above case, expired and accordingly, the first petitioner is deleted from the party array as per the order of this Court dated 24.2.2011 in Crl.M.A.No.1051 of 2011. 2. C.C.No.462 of 2010 is instituted in the trial court on the basis of the report preferred by the Police after investigation in Crime No.1007 of 2008 of the Kasaragod Police Station which was registered on receiving the private complaint preferred before the Chief Judicial Magistrate Court,Kasaragod by the first respondent herein who is the de facto complainant, under Section 156(3) of the Cr.P.C. The allegation against the accused is that the first accused, Crl.M.C.NO. 5036 of 2010 :-2-: who is no more, sold an extent of 10 cents of property situated in R.S.No.386/2 of Muttathody Village to the second accused as per registered deed dated 28.5.2007 of the Sub Registrar's Office, Kasaragod and according to the allegation, the first accused has no right over the property, but cheating the de facto complainant, 10 cents of property has been sold to the second accused. After investigation, the Police preferred a report against the accused alleging offences punishable under Sections 120B,420,468,471 read with Section 34 I.P.C. Thus, the prayer in this petition is to quash Annexures A private complaint, B F.I.R. and E Police Charge. 3. Learned counsel for the revision petitioner submitted that civil suit for partition is pending in the Sub Court, Kasaragod as O.S.No.2 of 2008 preferred by the first accused and his legal heirs. Learned counsel submitted that on the death of the first accused, the offence under Section 120B of I.P.C. and other offences against the remaining accused will not lie, especially when the specific allegation Crl.M.C.NO. 5036 of 2010 :-3-: is that it is the first accused, who cheated the de facto complainant and sold the property in favour of the second accused. The specific allegation of the prosecution agency is that the property was clandestinely transferred into the ownership of second accused in pursuance of a conspiracy and by forgery and fabrication of the document. Because of the death of the first accused, in a proceedings like the present one, this Court cannot come to a correct conclusion as to whether the alleged offence would lie against the accused, especially when the trial court was not approached with such prayer and no finding by it. But, the petitioners are free to bring the fact regarding the death of first accused and to argue the matter before the trial court at the time of framing charge, for discharge on the basis of the materials on record. It is the submission of the learned counsel for the respondent that since several accused are involved, the death of one of the accused, does not absolve other accused from the penal liability. Crl.M.C.NO. 5036 of 2010 :-4-: 4. As the matter is pending before the trial court, it is for the trial court to consider whether the offence alleged against the other accused would lie and whether a charge can be framed against those accused in the light of the death of the first accused. Therefore, it is not proper for this Court to consider the merits of those arguments in these proceedings. In the result, this Criminal M.C. Is disposed of relegating the petitioners to approach the trial court by filing a petition for discharge on the basis of the grounds which are raised before this Court, particularly after bringing to the notice of the court below regarding the death of the first accused. Accordingly, there will be a direction to the trial court to consider and pass appropriate orders, in case a petition is filed by the accused for their discharge within one month from the date of receipt of a copy of this order. V.K.MOHANAN, Judge. MBS/ Crl.M.C.NO. 5036 of 2010 :-5-: Crl.M.C.NO. 5036 of 2010 :-6-: