IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 24TH SEPTEMBER 2009 / 2ND ASWINA 1931 Crl.MC.No. 3085 of 2009 ---------------------------------- [CC.NO.1321/2008 OF JUDL.MAGISTRATE OF FIRST CLASS-I, HOSDRUG] .................... PETITIONERS/ ACCUSED NOS.8 & 9: ---------------------------------------------------- 1. T.AYISHA, AGED 40 YEARS, D/O.MOIDEEN, BAVA HAJI VALAPPU, HOSDURG KADAPPURAM, P.O.KANHANGAD, KASARAGOD DISTRICT. 2. C.H.KUNHAMAD, AGED 55 YEARS, BAVA HAJI VALAPPU, HOSDURG KADAPPURAM, P.O.KANHANGAD, KASARAGOD DISTRICT. BY ADV. MR.K.P.HARISH. RESPONDENTS/ COMPLAINANT: ----------------------------------------------- 1. STATE, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. ANJILLATH ABDUL HAMEED, AGED 57 YEARS, S/O.LATE H.MUHAMMED HAJI AND MARIYUMMA, RESIDING NEAR NOOR JUMA MASJID, KOTTACHERRY, P.O.KANHANGAD. R1 BY PUBLIC PROSECUTOR MR. AMJAD ALI. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 24/09/2009,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO. 3085 OF 2009 ------------------------------------------ Dated 24th September 2009 O R D E R Petitioners are accused 8 and 9 in C.C.1321/2008 on the file of Judicial First Class Magistrate-I, Hosdurg. Learned Magistrate after conducting an enquiry under Section 202, apart from examining the complainant, examined six other witnesses, and taken cognizance for the offences under Sections 465, 466, 143 and 506(ii) read with Section 149 of Indian Penal Code and issued summons to the accused. This petition is filed under Section 482 of Code of Criminal Procedure to quash the cognizance taken and on Annexure-AI complaint. 2. Learned counsel appearing for petitioners and learned Public Prosecutor were heard. 3. Argument of the learned counsel is that dispute is really of civil nature and no ingredients of the offence is made out as against the petitioners and therefore, continuation of the proceedings as against petitioners is only an abuse of process of the CRMC 3085/09 2 court. 4. Though petitioners have produced Annexure-AI complaint as well as Annexure-AIII sworn statement of the complainant, sworn statement of other witnesses were not produced. Annexure-AIV order sheet of the learned Magistrate shows that cognizance was taken after considering the allegations in the complaint as well as the sworn statement of the seven witnesses examined by the complainant. Therefore, based on the complaint and the sworn statement of the complainant alone, cognizance taken cannot be quashed. 5. As the learned Magistrate has taken cognizance after conducting an enquiry under Section 202, learned Magistrate has necessarily, to follow the procedure provided for trial of warrant case otherwise, then on a police report. Complainant and his witnesses are to be examined, in the presence of the petitioners and they are at liberty to cross examine the petitioners at that stage or to differ cross examination at a later stage. After recording the evidence, as provided under Section 244 of Code of Criminal Procedure, learned Magistrate has to CRMC 3085/09 3 hear the complainant and the accused and consider whether accused are to be discharged under Section 245 or not and only if it is found that they are not to be discharged, a charge is to be framed under Section 246(1) of Code of Criminal Procedure. Petitioners are entitled to raise all the contentions raised herein at that stage before the Magistrate. In such circumstances, I find no necessity to quash the proceedings as sought for. 6. Learned counsel then submitted that presence of the petitioners may be dispensed with at the time of hearing for discharge. I do not find that presence of the petitioners is necessary at that stage. If a petition is filed before the learned Magistrate to dispense with their presence at the time of examination of the complainant and his witness under Section 244 of Code of Criminal Procedure and for the purpose of hearing under Section 245 of Code of Criminal Procedure. Petitioners are also at liberty to file an application under Section 245 of Code of Criminal Procedure for discharge and learned Magistrate not to insist for the personal presence of the CRMC 3085/09 4 petitioners for the purpose of filing of the petition or its hearing. Petition is disposed. M.SASIDHARAN NAMBIAR, JUDGE. uj.