IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 30TH SEPTEMBER 2009 / 8TH ASWINA 1931 Crl.MC.No. 2530 of 2009 --------------------------------------- CC.113/2009 of JUDL.MAGISTRATE OF FIRST CLASS, KAYAMKULAM .................... PETITIONERS/A1 AND A2: 1. VINOD, S/O.CHELLAPPAN, THATTAVAZHIL HOUSE, ERUVA MURI, PATHIYOOR VILLAGE. 2. AMBILY, W/O.VINOD, THATTAVAZHIL HOUSE, ERUVA MURI, PATHIYOOR VILLAGE. BY ADV. SRI.M.V.THAMBAN SRI.R.REJI SRI.B.BIPIN RESPONDENT/STATE: STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM REPRESENTING THE SUB INSPECTOR OF POLICE, KAYAMKULAM POLICE STATION. PUBLIC PROSECUTOR SRI.S.U.NAZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 30/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.2530 of 2009 -------------------------- ORDER Petitioners are accused 1 and 2 in C.C.No. 113/2009 on the file of Judicial First Class Magistrate's Court, Kayamkulam, taken cognizance for the offences under Section 451 and 506(ii) read with Section 34 of Indian Penal Code. Defacto complainant is not impleaded in the petition. This petition is filed under Section 482 of Code of Criminal Procedure to quash Annexure-A3 final report and the cognizance taken thereunder. 2. Learned counsel appearing for the petitioners and learned Public Prosecutor were heard. 3. Argument of the learned counsel appearing for the petitioners is that the date of incident stated in Annexure-A1 complaint as well as in Annexure-A3 final report are different and petitioners are having interest in the house and hence, in any case, an offence under Section 451 of CRMC 2530/09 2 Indian Penal Code is not attracted and therefore, the proceedings is to be quashed. 4. Whether petitioners have right or interest in the house allegedly trespassed is a matter for evidence and cannot be decided in this petition filed under Section 482 of Code of Criminal Procedure. Similarly, prosecution case cannot be disbelieved at this stage based on the difference in the dates, seen in Annexure-A1 complaint as well as in Annexure-A3 final report, submitted after investigation. These are facts, which are to be considered by the Magistrate at the time of trial. I find no reason to quash the proceedings as sought for by the petitioners. Petitioners are entitled to raise all the contentions before the Magistrate and seek an order of discharge under Section 239 of Code of Criminal Procedure. Learned counsel appearing for the petitioners then submitted that a non bailable warrant is pending against the petitioners and learned Magistrate may be directed CRMC 2530/09 3 to release the petitioners on bail when they surrender. 5. When the accused surrender and file an application for bail, Magistrate is expected to pass orders on the application without delay. I find no reason to believe that Magistrate is unaware of the provisions of law or the decisions of this Court or the Apex Court or that Magistrate will not act in accordance with law. Hence, no direction is warranted. Petition is disposed. 30th September, 2009 (M.Sasidharan Nambiar, Judge) tkv