IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 5TH NOVEMBER 2008 / 14TH KARTHIKA 1930 Crl.MC.No. 4054 of 2008() ------------------------- CP.110/2008 of JUDL.MAGISTRATE OF FIRST CLASS-I, KARUNAGAPPALLY .................... PETITIONER(S): --------------- 1. NASIM, S/O.SHAMSUDHEEN KOYAPPALLIL HOUSE, EDAKULANGARA, THODIYUR, KOLLAM. 2. NASEER, S/O.SHAHUL HAMEED, KOCHUTHARAYIL HOUSE, THODIYUR, KOLLAM. BY ADV. SRI.SUNNY MATHEW RESPONDENT(S): --------------- STATE OF KERALA, THROUGH THE SUB INSPECTOR OF POLICE, OCHIRA POLICE STATION, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.GIKKU JACOB THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 05/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J. ---------------------- Crl.M.C.No.4054 of 2008 ---------------------------------------- Dated this the 5th day of November 2008 O R D E R Petitioners are accused 1 and 2 and they, along with the third accused face indictment in a prosecution for offences punishable inter alia under Section 308 I.P.C. There was one more accused. He, being a juvenile, separate charges have been submitted against the said juvenile. 2. The short grievance of the petitioners is that the learned Magistrate, without application of mind, has taken cognizance of the offence alleged under Section 308 I.P.C. Had the learned Magistrate carefully read the final report filed by the police, the learned Magistrate could not and would not have taken cognizance of the offence under Section 308 I.P.C, submits the learned counsel for the petitioners. Cognizance has been taken of the offences punishable under Sections 341,323,294(b), 308,506(i) and 34 I.P.C, it is submitted. The crux of the allegations is that when the de facto complainant and members of his family were proceeding in a car along a public road, the accused persons in two motorcycles came from behind and Crl.M.C.No.4054/08 2 attempted to overtake the vehicle. They entertained a grouse that the de facto complainant did not permit them to overtake his car. On account of this animosity, they allegedly intercepted the de facto complainant's car and unleashed violence on them. Crime has been registered. Investigation was completed and the final report was filed. 3. The short grievance that falls for consideration is whether on the allegations raised in the final report,taking of cognizance under Section 308 I.P.C and registering the case as a committal proceedings is justified or not. The learned counsel for the petitioners has drawn my attention to the precise allegation in the final report (copy of which is produced as Annexure A4). Relevant allegation in the final report is that the 4th accused took a stone which was lying at the scene of the crime and showed the threatening gesture of hitting the de facto complainant with such stone and thus caused mortal fear in him. 4. Having considered all the relevant circumstances I find merit in the contention of the learned counsel for the petitioners that the specific allegations do not invite an indictment under Section 308 I.P.C. I am, in these Crl.M.C.No.4054/08 3 circumstances, satisfied that the cognizance taken of the offence punishable under Section 308 I.P.C deserves to be quashed. 5. In the result, a) This Crl.M.C is allowed. b) Cognizance taken of the offence under Section 308 I.P.C by the learned J.F.C.M Karunagappally in C.P.No.110/2008 is quashed. c) The learned Magistrate shall continue with the cognizance taken of the other offences, shall renumber the proceedings as a calender case and proceed accordingly. (R.BASANT, JUDGE) jsr Crl.M.C.No.4054/08 4 Crl.M.C.No.4054/08 5 R.BASANT, J. CRL.M.C.No. of 2008 ORDER 09/07/2008