IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 22ND SEPTEMBER 2009 / 31ST BHADRA 1931 Crl.MC.No. 1814 of 2009(B) -------------------------------------- (CRIME NO. 430/2007 OF KANJIRAPPALLY POLICE STATION, KOTTAYAM DISTRICT) .......... PETITIONER:-(DE-FACTO COMPLAINANT): ------------------------------------------------------------- P.RAJKUMAR, AGED 55 YEARS, S/O.G. PURSUHOTHAMAN, PATTATHIL HOUSE, EDAKKUNNAM P.O, PARATHODE VIA, KOTTAYAM DISTRICT. BY ADV. MR.T.M.ABDUL LATHEEF. RESPONDENTS:-(STATE & ACCUSED): -------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. 2. THOMAS, VARANATH HOUSE, EDAKKUNNAM P.O, PARATHODE VIA .,KOTTAYAM DISTRICT. 3. CHACKO VARANATH HOUSE, EDAKKUNNAM P.O, PARATHODE VIA., KOTTAYAM DISTRICT. 4. JOSEKUTTY, MUNDAPLACKAL, VARANATH HOUSE, EDAKKUNNAM P.O, PARATHODE VIA, KOTTAYAM DISTRICT. R1 BY PUBLIC PROSECUTOR MR. S.U. NAZAR. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 22/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.1814 of 2009 -------------------------- ORDER Petitioner is the defacto complainant in C.C.No. 763/2008 on the file of Judicial First Class Magistrate's Court-I, Kanjirappally, taken cognizance for the offences under Section 452, 341, 323 and 324 read with section 34 of Indian Penal Code. This petition is filed under Section 482 of Code of Criminal Procedure for a direction to the learned Magistrate not to delete the offence under Section 308 of Indian Penal Code from the final charge sheet in Crime No.430/2007 of Kanjirappally Police Station. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. Argument of the learned counsel appearing for the petitioner is that though in Annexure-A2 final report an offence under Section 308 of Indian Penal Code is not alleged, on the materials, it is clear that an offence under Section 308 was also committed by the accused and therefore, learned Magistrate should have CRMC 1814/09 2 taken cognizance for the offence under Section 308 of Indian Penal Code also. 4. As is clear from Annexure-A2, copy of the final report produced by the petitioner along with the petition, cognizance was taken by the learned Magistrate as early as on 20.12.2008. Learned Magistrate, thereafter, issued summons to the accused. It is admitted by learned counsel appearing for the petitioner that subsequently court has framed charge also. In such circumstances, petitioner is not entitled to get an order directing the Magistrate not to delete the offence under Section 308 of Indian Penal Code from the final charge sheet. It is the settled law that Magistrate is not bound by the decision taken by the Investigating Officer in the final report. It is for the Magistrate, based on the final report and the records accompanying the same, to decide what are the offences committed by the accused. After hearing the prosecution and defence, it is for the Magistrate to frame the charge. When charge is already framed by the court, petitioner cannot approach this Court with an innocuous prayer that a direction is to be issued to CRMC 1814/09 3 the Magistrate not to delete the offence under Section 308 of Indian Penal Code from the final charge sheet, when the charge does not contain an allegation that an offence under Section 308 of Indian Penal Code was committed by the accused. In such circumstances, petition can only be dismissed. Learned counsel then submitted that petitioner may be permitted to raise before the learned Magistrate that an offence under Section 308 of Indian Penal Code is also attracted. Petitioner should have raised the contention at least when the charge was framed. If petitioner is legally entitled to raise this point by filing an application for alteration of charge, he is at liberty to do the same. Petition is dismissed. 22nd September, 2009 (M.Sasidharan Nambiar, Judge) tkv