IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 12TH OCTOBER 2009 / 20TH ASWINA 1931 Crl.MC.No. 2620 of 2009 --------------------------------------- CC.563/2007 of 563/2007 of JFCM, KOTHAMANGALAM .................... PETITIONER/ACCUSED NO.9: JOSE THOMAS, S/O.THOMAS, NELLICKAL HOUSE, KUTHUKUZHIKARA, KOTHAMANGALAM VILLAGE. BY ADV. SRI.R.BINDU (SASTHAMANGALAM) SRI.PRASANTH M.P RESPONDENT/DEFACTO COMPLAINANT: STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.S.U.NAZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 12/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.2620 of 2009 -------------------------- ORDER Petitioner is the 9th accused in C.C.No.563/2007 on the file of Judicial First Class Magistrate's Court, Kothamangalam. Originally, based on a final report submitted in Crime No.29/2007 of Kothamangalam Police station, cognizance was taken as against five accused. Thereafter, based on a petition filed under Section 173(8) of Code of Criminal Procedure for further investigation, which was permitted by the learned Magistrate, investigation was conducted and a final report was submitted, which was taken cognizance as against 17 accused. This petition is filed under Section 482 of Code of Criminal Procedure contending that there is absolutely no material to implicate the petitioner as an accused and therefore, the proceedings as against the petitioner is only an abuse of process of the court and it is to be quashed. CRMC 2620/09 2 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. Learned counsel appearing for the petitioner submitted that there is absolutely no material to connect the petitioner with the offence and therefore, the cognizance taken against the petitioner is only an abuse of process of the court and it is to be quashed. 4. Petitioner has not impleaded the defacto complainant. In such circumstances, I find that the proceedings cannot be quashed, especially, when, petitioner is entitled to raise all the contentions before the learned Magistrate and seek an order of discharge. 5. Learned counsel appearing for the petitioner then submitted that personal presence of the petitioner may not be insisted for the purpose of filing an application under Section 239 of Code of Criminal Procedure or for its hearing. I find no necessity to insist for the presence of the CRMC 2620/09 3 petitioner for the purpose of filing an application under Section 239 of Code of Criminal procedure or for its hearing and if a petition under Section 205 of Code of Criminal Procedure is filed, Magistrate to grant exemption to the petitioner, for the purpose of filing an application under Section 239 of Code of criminal Procedure and also for its hearing. If a petition is filed under Section 239 of Code of Criminal Procedure for an order of discharge, learned Magistrate to decide whether there is any material, including statements recorded under Section 161 of Code of Criminal Procedure, to connect the petitioner with the offence and if there is no material, petitioner is entitled to get an order of discharge. Petition is disposed. 12th October, 2009 (M.Sasidharan Nambiar, Judge) tkv