IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 10TH JUNE 2009 / 20TH JYAISHTA 1931 Crl.MC.No. 1259 of 2009() ----------------------------------- CP.45/2008 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, TRIVANDRUM .................... PETITIONER(S): ACCUSED 1 TO 3: -------------------------- 1. KRISHNAKUMAR, S/O.RAMACHANDRAN NAIR, PANDARAVILA VEEDU, KOWDIAR P.O., THIRUVANANTHAPURAM. 2. RAMACHANDRAN NAIR, PANDARAVILA VEEDU, KOWDIAR P.O., THIRUVANANTHAPURAM. 3. CHANDRIKA DEVI, PANDARAVILA VEEDU, KOWDIAR P.O., THIRUVANANTHAPURAM. BY ADV. MR.M.SREEKUMAR RESPONDENT(S): COMPLAINANTS: -------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. PRABHAKARAN, S/O.DASAN, T.C.5/2282(1), NESTTIL, KOWDIAR P.O., THIRUVANANTHAPURAM. PUBLIC PROSECUTOR MR.AMJAD ALI THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 10/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.MA. NO.1959/2009 IN CRL.MC. NO.1259/2009 DISMISSED 10.06.2009 SD/- M.SASIDHARAN NAMBIAR, JUDGE TRUE COPY P.A. TO JUDGE TSS M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO. 1259 OF 2009 ------------------------------------------ Dated 10th June 2009 O R D E R Petitioners are accused in C.P.45/2008 on the file of Judicial First Class Magistrate, Thiruvananthapuram. Second respondent is the complainant therein. Magistrate has taken cognizance of the offences under Sections 307 and 447 read with Section 34 of Indian Penal Code against first petitioner/son and petitioners 2 and 3, his parents. This petition is filed to quash the proceedings under Section 482 of Code of Criminal Procedure contending that police has originally investigated the case and submitted Annexure-E report alleging that first petitioner committed offence under Section 324 of Indian Penal Code and learned Magistrate has taken cognizance on Annexure-A complaint, without properly considering the complaint and though statement of the witnesses were recorded, fact that those witnesses had no such case when the statements were recorded by the investigating officer in crime No.240/2007 was not CRMC 1259/09 2 properly appreciated and in such circumstances, learned Magistrate should not have taken cognizance of the offence under Section 307 of Indian Penal Code based on their statements. Learned counsel also argued that Annexure-E wound certificate establish that second respondent sustained only lacerated wound on the forehead apart from aberrations on the scalp and right limp and in the nature of those injuries offence under Section 307 of Indian Penal Code is not attracted and in such circumstances, cognizance for the said offence should not have been taken. Learned counsel also argued that in spite of Annexure-E report in the private complaint, there is no specific challenge against final report and what is pleaded in para 7 is only that statement of second respondent was not correctly recorded and not that statement of his witnesses were not correctly recorded and therefore learned Magistrate was not justified in taking cognizance of the offence. Learned counsel also argued that petitioners 2 and 3, the parents are aged and the only allegation against them is that it was in furtherance of their common intention, first petitioner inflicted the injury and in such circumstances, there is CRMC 1259/09 3 no justification for taking cognizance as against petitioners 2 and 3 and therefore, in any event cognizance as against petitioners 2 and 3 are to be quashed. 2. Learned counsel appearing for petitioners and learned Public Prosecutor were heard. 3. Though learned counsel vehemently argued that learned Magistrate should not have accepted the evidence of witnesses recorded in the enquiry conducted under Section 202 of Code of Criminal Procedure, for the reason that their statements are not in confirmity in their statements recorded by investigating officer under Section 161 of Code of Criminal Procedure, at this stage it is not possible to hold that what is recorded by the investigating officer is the correct version of the incidents and not the version disclosed by them before the court. That is a matter for consideration at the time of trial. Learned Magistrate cannot find fault for acting on the statements made before him. Similarly, based on the nature of the injury seen in the wound certificate alone, it cannot be said that an offence under Section 307 of Indian Penal Code is not attracted. In any event, that question cannot be decided at this CRMC 1259/09 4 stage in this petition. As offence now alleged is under Section 307 of Indian Penal Code. Necessarily the case is to be committed to the Sessions court and in that event petitioners are entitled to seek discharge as provided under Section 227 of Code of Criminal Procedure. Fact that the case alleged against petitioners 2 and 3 is based on common intention pursuant to which first petitioner attacked second respondent, is also not a ground to quash the proceedings as sought for. Even the age of the petitioners 2 and 3 is not a valid ground. Petition is therefore dismissed with liberty to the petitioners to urge all the grounds available before the Sessions Judge. If petitioners file an application under Section 205(1) of Code of Criminal Procedure, learned Magistrate may pass orders in accordance with law without insisting for their presence. M.SASIDHARAN NAMBIAR, JUDGE. uj.