IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 15TH FEBRUARY 2010 / 26TH MAGHA 1931 Crl.MC.No. 260 of 2010(B) ------------------------------------ [CC.NO.1061/2002 OF JUDL.MAGISTRATE OF FIRST CLASS COURT-II, ERNAKULAM] .................... PETITIONER/ 1ST ACCUSED: ----------------------------------------- ABRAHAM, S/O. ANTHRAYOSE, THEKKEKKARA HOUSE, KANNACHIRA KARA, VAKATHANAM, CHANGANASSERRY. BY ADV. MR.BIJU HARIHARAN. RESPONDENT/COMPLAINANT: -------------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR MR.K.S. SIVAKUMAR. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 15/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No.260 OF 2010 =========================== Dated this the 15th day of February,2010 ORDER Petitioner is the first accused in C.C.1061/2002 on the file of Judicial First Class Magistrate's Court-II, Ernakulam taken cognizance for the offence under sections 341, 323, 506(i) 498A read with section 34 of Indian Penal Code. This petition is filed under section 482 of Code of Criminal Procedure to quash the final report, taken cognizance by the learned Magistrate or to direct the Magistrate to consider Annexure A3 petition filed by the accused before the learned Magistrate. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. A report was called for from the learned Magistrate to ascertain why the case Crl.M.C.260/2010 2 was not being disposed. Learned Magistrate submitted a report stating that 16,129 cases are scheduled to be disposed of in that court, including this case before May, 2010 as per the target fixed by this court. The report also shows that the accused appeared and were permanently exempted from appearance and Cws.3 and 4 were examined as Pws.1and 2 and non-bailable warrant was issued against Cws.1, 2, 5 and 6. As the non- bailable warrant was not executed, report was called for from the Investigating Officer and also directed the Investigating Officer to produce the witnesses. Learned Magistrate also reported that CW1 is residing outside India. 4. Learned counsel appearing for the petitioner pointed out that the accused appeared before the learned Magistrate on 27.3.2004 and summons were issued to the witness on 27.3.2004 itself and on 16.11.2005 application for adjournment was allowed and CW1, 2 and 3 were bound Crl.M.C.260/2010 3 over and thereafter inspite of issuance of non bailable warrant, Cws.1 to 3 were not available for examination. It is in such circumstance, petitioner filed CMP 2052/2009 before the learned Magistrate. It is contended that case is being adjourned not for the fault of the accused and hence the case is to be quashed. 5. The examination of CW1 the de facto complainant who was allegedly subjected to cruelty cannot be dispensed with as she is a necessary witness. It cannot be said that learned Magistrate has not taken steps to procure the presence of CW1. As seen from Annexure A2, proceeding paper as well as the report of the Magistrate, non bailable warrant was issued. It is yet to be executed. Learned counsel also did not dispute the fact that CW1 is now employed outside India. In such circumstance, for the failure to examine the material witnesses, the case cannot be quashed as sought for. Crl.M.C.260/2010 4 6. Learned Magistrate is directed to dispose of Annexure A3 petition in accordance with law expeditiously. Petition is disposed accordingly. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006