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. 3147 of 2009 --------------------------------------- CC.2/2009 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, NEDUMANGAD .................... PETITIONERS/ACCUSED 1 &2: 1. B.OMANA, D/O.BAVAMMA, AGED 56 YEARS, EMPLOYED AS SENIOR TECHNICIAN GRADE A, QID VSSC, THIRUVANANTHAPURAM 22, RESIDING AT DIVYA, HOUSE NO.59, CHEMBAKASSERY NAGAR, KESAVADASAPURAM, PATTOM PO, TRIVANDRUM-4. 2. O.DIVYA, D/O. B.OMANA, AGED 26 YEARS, DO..DO.. BY ADV. SRI.S.JAMES VINCENT RESPONDENTS/STATE & COMPLAINANT: 1. STATE OF KERALA, REP BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM KOCHI-31 2. V.S.OMANA, D/O.V.K.SUBRAMANIAN VELLANI HOUSE, RAPPAL, PUDUKKADU PO MUKUNDAPURAM TALUK, THRISSUR DISTRICT. BY PUBLIC PROSECUTOR SRI.AMJAD ALI FOR R1 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.3147 of 2009 -------------------------- ORDER Petitioners are accused 1 and 2 and second respondent, the defacto complainant in C.C.No. 2/2009 on the file of Judicial First Class Magistrate's Court-I, Nedumangad, taken cognizance for the offences under Sections 464, 465, 446 and 420 read with Section 34 of Indian Penal Code on Annexure-A7 final report. This petition is filed under Section 482 of Code of Criminal Procedure to quash the proceedings contending that learned Magistrate should not have taken cognizance as the deed was cancelled and first petitioner is having one third right in the assets of late Sathyakumar and even if the allegations of the second respondent are accepted, larger right of the second petitioner for her two third share, inclusive of one third right of her parents, cannot be negatived. CRMC 3147/09 2 2. Learned counsel appearing for the petitioners and learned Public Prosecutor were heard. 3. Learned counsel appearing for the petitioners submitted that first petitioner is a chronic heart patient undergoing treatment in SUT Hospital, Thiruvananthapuram and she is advised to undergo bye-pass surgery urgently and in such circumstances, she is not in a position to appear before the learned Magistrate. 4. On hearing the learned counsel, I find no reason to quash the proceedings as sought for when 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. I find no necessity to insist for personal presence of the petitioners for the purpose of filing an application under Section 239 of Code of Criminal Procedure or its hearing. Petition is disposed granting liberty to the petitioners to file an application for discharge CRMC 3147/09 3 under Section 239 of Code of Criminal Procedure and raise all the contentions raised herein before the learned Magistrate. Petitioners are also at liberty to file an application under Section 205 of Code of Criminal Procedure to dispense with their presence. Learned Magistrate not to insist for personal presence of the petitioners for the purpose of filing an application under Section 239 of Code of Criminal Procedure or its hearing. 30th September, 2009 (M.Sasidharan Nambiar, Judge) tkv