IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 7TH AUGUST 2009 / 16TH SRAVANA 1931 Crl.MC.No. 2514 of 2009() ------------------------- CC.516/2008 of JUDL.MAGISTRATE OF FIRST CLASS-I, MUVATTUPUZHA .................... PETITIONER(S): ACCUSED: ---------------------------------------- 1. M.N.PARTHASARATHY, S/O.NEELAKANDAN, MOOTHEDATHU HOUSE, RAMANGALAM KARA, MARADI VILLAGE, MUVATTUPUZHA TALUK. 2. M.S.RAKESH, S/O.M.N.SUKUMARAN, K.V.26, MOOTHEDATHU HOUSE, KRISHNA VIHAR COLONY, DIVISION NO.2, KOCHI CORPORATION, ERNAKULAM VILLAGE, KANAYANNOOR TALUK. 3. M.P.BABY, S/O.M.N.PARTHASARATHY, MOOTHEDATHU HOUSE, MUVATTUPUZHA Y.M.C.A.ROAD, RAMANGALAM KARA, MARADI VILLAGE, MUVATTUPUZHA TALUK. BY ADVS. MR.P.VIJAYA BHANU, MR.M.REVIKRISHNAN. RESPONDENT(S): COMPLAINANT & STATE: ------------------------------------------------------------------ 1. M.P.SHINU, S/O.LATE M.N.PURUSHOTHAMAN, MOOTHEDATHU HOUSE, KAVUMPADI ROAD, RAMANGALAM KARA, MARADI VILLAGE, MUVATTUPUZHA TALUK. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR MR. B.VINOD THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 07/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No.2514 OF 2009 =========================== Dated this the 7th day of August,2009 ORDER Petitioners are the accused in C.C. 516/2008 on the file of Judicial First Class Magistrate Court, Muvattupuzha. First respondent lodged a complaint which was sent for investigation under section 156(3) of the Code of Criminal Procedure. Based on the investigation Annexure E refer report was filed. It is thereafter Annexure F complaint was filed alleging that petitioners committed offences under sections 465 and 120B read with section 34 of Indian Penal Code. This petition is filed under section 482 of Code of Criminal Procedure to quash Annexure F complaint and all other proceedings taken therein. 2. Learned counsel appearing for the petitioners was heard. Crl.M.C.2514/2009 2 3. The argument of the learned counsel is that when Annexure E refer report was filed after investigation and the refer report was accepted by the learned Magistrate before taking cognizance on Annexure F complaint, learned Magistrate is bound to apply his mind and should have found an additional ground than what is stated in Annexure C final report and originally accepted by the court. Reliance was placed on the decision of this court in Parameswaran Nair v. Surendran (2009(1) KLT 794). Learned counsel appearing for the petitioners vehemently argued that Annexure F complaint shows that as document No.1 Annexure c was shown but subsequently it was scored off and Annexure C document shows that the property was not purchased by Purushothaman the father of the first respondent in his individual right but only as Managing Partner of the firm and therefore first respondent is not entitled to contend that the property exclusively belonged to his father and in Crl.M.C.2514/2009 3 such circumstance the learned Magistrate should not have taken cognizance of the offence. 4. Petitioner has not challenged the order taking cognizance of the offence on Annexure F complaint. Instead the prayer to quash Annexure F complaint stating that based on the allegations, the learned Magistrate should not have taken cognizance. Reliance was also placed on the decision in Parameswaran Nair's case(supra). But without producing the order by which learned Magistrate has taken cognizance, it is not possible to find out on what basis the Magistrate has taken cognizance and whether he has considered the relevant facts noted by this court in 2009(1) KLT 794. Though learned counsel appearing for the petitioners vehemently argued that in view of Annexure C document by which the partnership firm purchased the property, case of the first respondent that by transferring the property as per document No.3324/2007 dated 21.5.2007 an offence Crl.M.C.2514/2009 4 under section 465 of Indian Penal Code was not committed, should not have been accepted by the learned Magistrate, the said document is also not produced. 5. On hearing the learned counsel, I find no reason to invoke the extra ordinary inherent jurisdiction of this court to quash the complaint when petitioners can raise all the contentions before the learned Magistrate and seek an order of discharge under section 245 of Code of Criminal Procedure. As the learned Magistrate has taken cognizance of Annexure F complaint after an inquiry under section 202 of Code of Criminal Procedure and the case is being tried as a warrant trial otherwise than on a police report, after recording evidence of the complainant as provided under section 244 of Code of Criminal Procedure, learned Magistrate is bound to hear the petitioners also before proceeding under section 246. Petitioners are entitled to raise all the contentions before Crl.M.C.2514/2009 5 the learned Magistrate at that stage and seek an order of discharge under section 245. Petitioners are also entitled to file an application under section 245 of Code of Criminal Procedure. In such circumstance, petition is disposed permitting the petitioners to apply for discharge. Learned counsel appearing for the petitioners submitted that petitioners may be permitted to plead discharge without personal appearance. If petitioners files an application before the learned Magistrate, Magistrate to consider the said application and pass appropriate orders in accordance with law. I find no necessity to insist for the presence of the petitioners for the purpose of filing or hearing the application under section 245. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006