IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 28TH JULY 2009 / 6TH SRAVANA 1931 Crl.MC.No. 1540 of 2009 -------------------------------- CC.20/2008 FILE OF JUDICIAL FIRST CLASS MAGISTRATE, ERATTUPETTA CRIME NO. 113/2007 OF MELUKAVU POLICE STATION .......................................... PETITIONER(S): ACCUSED ------------------------------------- JOSE THOMAS, AGED 55 YEARS, ADVOCATE, PANDIYANACKAL HOUSE, KADANADU VILLAGE, KADANADU KARA, MEENACHIL TALUK, KOTTAYAM DISTRICT. BY ADV. SRI.S.RAJEEV RESPONDENT(S): STATE ------------------------------------ 1. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM (CRIME NO.113 OF 2007 OF MELUKAVU POLICE STATION). 2. LIGI SHYAM, W/O. SYAM KUMAR, AGED 34 YRS, RESIDING AT KOLLAPPILLIL HOUSE, ATHIKKAD P.O., KOLLAPPILLY, PALA, KOTTAYAM ADD. R2 IS IMPLEADED AS PER ORDER DATED 28/07/2009 IN CRL. MA NO. 4099/2009. PUBLIC PROSECUTOR SRI. B.VINOD R2 BY ADV. ASOK M CHERIAN ADV. SRI.T.R.RENJITH THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 28/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No.1540 OF 2009 =========================== Dated this the 28th day of July,2009 ORDER Petitioner is the accused in C.P 20/2008 on the file of Judicial First Class Magistrate Court, Erattupetta. This petition is filed under section 482 of Code of Criminal Procedure to quash the proceedings. Originally a final report was filed alleging that petitioner committed offence under sections 452, 366,354,506(i) and 323 of Indian Penal Code. When the matter was pending before the committal court, petitioner filed Crl.M.C.3910/2008 to quash the proceedings. On 7.11.2008 when Crl.M.C.was heard and dictation was started, petitioner requested to permit him to withdraw the petition without prejudice to his right to raise all the relevant contentions before the Sessions Court at the stage of hearing under section 277/228 of Code of Criminal Procedure. Granting permission Crl.M.C was dismissed. On 13.11.2008 six days thereafter petitioner without disclosing the order in Crl.M.C.3910/2008, approached the Home Secretary for a direction for further investigation under section 173 Crl.M.C.1540/2009 2 (8) of Code of Criminal Procedure. The Home Secretary directed the Superintendent of Police, Kottayam to take proper action as per law. Thereafter Annexure 4 order was passed by the Superintendent of Police, Kottayam directing the Circle Inspector of Police,Erattupetta to conduct a reinvestigation which cannot be legal as only a further investigation is possible. Thereafter a further investigation was conducted and Annexure 5 final report was filed altering the charge from 376 read with section 511 to Section 366 of Indian Penal Code. This petition is filed thereafter without disclosing the filing of Crl.M.c.3910/2008 or the permission granted to withdraw the Crl.M.C with liberty to seek discharge before the Sessions Court. 2. Heard the learned counsel for the petitioner and the learned Public Prosecutor as well as the de facto complainant, who was impleaded as per order in Crl.M.A.4099/2009. 3. Learned counsel appearing for the petitioner argued that but for the offence under section 366 of Indian Penal code the case is to be tried by Judicial First Class Magistrate and on the face of Annexure 5 final report an offence under section 366 will not lie and therefore the said offence is to be quashed. It was argued that Annexure Crl.M.C.1540/2009 3 1 wound certificate shows that when second respondent was examined by the doctor on 11.7.2007 it was reported to the doctor that the victim was not sexually troubled and therefore an offence under section 366 of Indian Penal code will not lie. 4. On hearing the learned counsel, I cannot agree with the submission of the learned counsel. Abduction as defined under section 362 of Indian Penal Code will be attracted if by force a person is compelled or by any deceitful means that person was induced to go from any place. Section 366 of Indian Penal Code will be attracted if a person abducts any woman either with intent that she may be compelled or knowing it to be likely that she will be compelled to marry against her will or that she be forced or seduced to illicit intercourse or knowing that it is likely that she will be forced or seduced to illicit intercourse. Therefore the fact that at the time when the doctor examined the victim it was disclosed by the victim that she was not sexually attacked, does not enable the petitioner at this stage to canvass a case that Section 366 of Indian Penal Code is not attracted. In any case it is a matter to be decided on the materials and evidence. Therefore the proceedings cannot be quashed as sought for. 5. Learned counsel appearing for the petitioner then Crl.M.C.1540/2009 4 submitted that petitioner may be permitted to seek an order of discharge under section 227 without the personal presence of the petitioner. It is for the petitioner to approach the concerned Sessions Judge for appropriate order. Petition is disposed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006