IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 20TH OCTOBER 2008 / 28TH ASWINA 1930 Crl.Rev.Pet.No. 721 of 2007() ----------------------------- CC.946/2006 of JUDL.MAGISTRATE OF FIRST CLASS-I,KOYILANDY .................... REVISION PETITIONER: ACCUSED NO.2. -------------------------------------------------------------- RAJESH, S/O.SHANMUGHAN, THAIKKOTTAMPARAMBIL, BHUT ROAD, P.O.WEST HILL, KOZHIKODE. BY ADV. SRI.P.VIJAYA BHANU SMT.P.MAYA RESPONDENTSS: COMPLAINANT AND STATE: ---------------------------------------------------------------------- 1. SUNDER DAS, S/O.DASAN, THALAPPEDAYIL SUNDARAM (H), ASHRAMAM ROAD, ATHANIKKAL. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.P. SREEJITH FOR R.1 BY PUBLIC PROSECUTOR SRI. C.M. KAMAPPU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO. 721 OF 2007 =========================== Dated this the 20th day of October,2008 ORDER Petitioner is the second accused in C.C.946/2006 on the file of Judicial First Class Magistrate, Koyilandy. Based on the information furnished by the injured, Police prepared a First Information Report and registered Crime No.4/2005 of Elathur Police Station. After investigation a final report was filed under section 173 of Code of Criminal Procedure against first accused and one Baburajan. First respondent filed a complaint before the learned Magistrate contending that it was not Baburajan but the petitioner herein who was involved in the offence along with the first accused and police has not properly investigated the case and both the accused committed offences under sections 341 and 324 read with section 34 IPC. Learned Magistrate recorded the sworn statement of first respondent. Thereafter on the CRRP 721/2007 2 application filed by the petitioner, summons was issued to the Little Flower Hospital and Research Centre, Angamali to produce the treatment records of the first respondent. On receipt of the records, perusing the same and considering the statement of first respondent, learned Magistrate took cognizance of the offences under section 341,326 read with section 34 of IPC. Second accused filed the revision under section 397 read with section 401 of Code of Criminal Procedure. 2. Learned counsel appearing for petitioner and learned counsel appearing for first respondent were heard. 3. The argument of the learned counsel for the petitioner is that learned Magistrate was not justified in taking cognizance of the offences in the light of the final report filed by the police which shows that it was not the petitioner but Baburajan who was involved in the incident. It was also contended that there is no material to take cognizance of an offence under section 326 of IPC CRRP 721/2007 3 and therefore the order is to be quashed. 4. Learned counsel appearing for first respondent submitted that the very case of first respondent was that it was the petitioner along with the first accused who committed the offence and while second respondent restrained the petitioner first accused inflicted the injury on his left eye and as a result the left eye of the first respondent was lost and there is no reason to interfere with the order passed by the learned Magistrate. 5. On hearing the learned counsel and going through the records which was called for from the Magistrate, I do not find any illegality in the order passed by the learned Magistrate. It is definite case of the injured first respondent that on that crucial night it was the petitioner who restrained him while he was taking the car involved in an accident and thereafter the first accused hit with keys on one of his eyes and inflicted the injury. When police after investigation did not CRRP 721/2007 4 implicate the petitioner and instead filed a final report as against one Baburajan along with the first accused, the complaint was filed. On the statement of PW1 recorded by the Magistrate it cannot be said that cognizance taken against the petitioner is without any material. The question whether the offence committed is under section 326 of IPC is not to be decided at this stage. Offences which can only be tried as a warrant case, Magistrate has to proceed as provided under section 244 of the Code of Criminal Procedure. After recording the evidence and considering the materials, if the Magistrate considers that no case against the petitioner or the other accused is made out, which if unrebutted would not warrant conviction, the accused is to be discharged as provided under sub section (1) of Section 245. If on the material Magistrate finds that there is ground for presuming that accused committed the offence, he is bound to frame charge as provided under section 246. At that stage learned CRRP 721/2007 5 Magistrate has to consider whether the offence comes under section 326 or 325 or 324 of Indian Penal Code. Petitioner is entitled to agitate that aspect at that stage. Criminal Revision Petition is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006