IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 26TH JUNE 2009 / 5TH ASHADHA 1931 Crl.MC.No. 1634 of 2009() ---------------------------------- CRIME NO.123/2009 OF THE BEKAL POLICE STATION .................... PETITIONERS/ACCUSED NOS. 1 AND 2. ------------------------------------------------ 1. ABBAS M., S/O. MOIDU, MEETHAL MAVVAL HOUSE, MAVVAL P.O., KASARAGOD. 2. ABDUL SALAM, S/O. MARIYAM, MEETHAL MAVVAL HOUSE, MAVVAL P.O., KASARAGOD. BY ADV. MR.SUNNY MATHEW RESPONDENTS/COMPLAINANT. --------------------------------------------- 1. MUHAMMED HANEEFA P.M., S/O. ABOOBACKER, SHEREEF MANZIL, HADDAD NAGAR, PALLIKKARA, KASARAGOD DISTRICT. 2. THE SUB INSPECTOR OF POLICE, BEKAL POLICE STATION. R2 BY PUBLIC PROSECUTOR MR.GIKKU JACOB. R1 BY ADV. MR.K.SHRIHARI RAO, SMT.N.SHOBHA. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 26/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO.1634 OF 2009 ------------------------------------------ Dated 26th June 2009 O R D E R Petitioners are accused in crime 123/2009 of Bekal police station. This petition is filed under Section 482 of Code of Criminal Procedure to quash Annexure-A1 F.I Statement to the extent of Section 308 of Indian Penal Code contending that offence under Section 308 of Indian Penal Code is not at all attracted. 2. Learned counsel appearing for petitioners and learned counsel appearing for first respondent and learned Public Prosecutor were heard. 3. Annexure-A1 FI statement only reveals that first respondent was restrained while proceeding in a motor bike by the accused and he was beaten on the back with a wooden stick and was hit by a stone on the head and when he made an attempt to hit him with a stone, it was evaded by first respondent, there was a threat that second respondent would be done away with. Annexure-A3 wound certificate shows that the only injury found by the doctor when examined him immediately on the same day was a small lacerated wound on left parietal region and contusion of right shoulder. There is force CRMC 1634/09 2 in the submission of the learned counsel appearing for the petitioners that with these injuries, it cannot be said that the attempt was to commit culpable homicide. If that be so, it cannot prima facie be said that petitioners committed offence under Section 308 of Indian Penal Code as alleged in Annexure-A1 F.I statement. 4. But considering the fact that the case is under investigation, I do not find it proper to quash the offence under Section 308 of Indian Penal Code. Considering the fact that, if an offence under Section 308 is there in F.I Statement, petitioners would be denied bail by the learned Magistrate and the said offence as not made out, while considering the bail application, learned Magistrate has to consider it a case not under Section 308 of Indian Penal Code and dispose the application in accordance with law. The Investigating Officer is directed to complete the investigation without delay. Petition is disposed. M.SASIDHARAN NAMBIAR, JUDGE. uj.