IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 12TH AUGUST 2009 / 21ST SRAVANA 1931 Crl.MC.No. 2635 of 2009() ------------------------- CC.NO.387/2008 OF JUDL.MAGISTRATE OF FIRST CLASS-II, ALUVA. .................... PETITIONERS/ ACCUSED: ------------------------------------- 1. K.H.ABDUL KAREEM, AGED 50, S/O. HASSAN KAVUNGAPPADATH, VMB ROAD, PATHADIPPALAM, P.O.CHANGAMPUZHA NAGAR 682 033, THRIKKAKARA NORTH VILLAGE. 2. K.H.MUHAMMADALI, AGED 49, S/O. HASSAN, NOW RESIDING AT 24/143 ILLICKAL HOUSE, NEAR V.P MARAKKAL SMARAKA LIBRARY, ILLIKKAL MOIDEEN ROAD, PATHADIPPALAM,PO CHANGMAPUZHA NAGAR 682033, THRIKKAKARA NORTH VILLAGE. 3. K.H.ABDUL MAJEED, AGED 41, S/O. HASSAN, NOW RESIDING AT 24/143 UPSTAIR, ILLICKAL HOUSE, NEAR VP MARAKKAL SMARAKA LIBRARY, ILLIKKAL MOIDEEN ROAD, PATHADIPPALAM, P.O CHANGAMPUZHA NAGAR, 682 033, THRIKKAKARA NORTH VILLAGE. 4. K.H.ABDUL SALAM, AGED 36, S/O. HASSAN, KAVUNGPPADATH, VMB ROAD, PATHADIPPALAM, P.O CHANGAMPUZHA NAGAR, 682 033, THRIKKAKARA NORTH VILLAGE. 5. K.H.LAILA (ASYA) AGED 46, W/O. KUNJUMUHAMMED (KUNJAMI) KANDAYATH MADOM, OPPOSITE SALAFI MASJID, ANIKKAD JUNCTION, NEAR SUPREME STEEL COMPANY KUTTAMASSERY, THOTTUMUGHAM.P.O. ALUVA 683 105. CRL.M.C. NO. 2635/2009: 6. (KH) SOUDA AGED 39, W/O. CM HAMEED, CHENNAMPILLY VEEDU, PKA NAGAR, KOCHIN UNIVERSITY P.O., PIN-682 021. BY ADV. MR.N.K.MOHANLAL. RESPONDENTS/ COMPLAINANTS: ------------------------------------------------- 1. SUB INSPECTOR OF POLICE, KALAMASSERY POLICE STATION. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 3. NAZAR, S/O.KADIRUPILLA, ANJIKKATH VEEDU, VMB ROAD, PATHADIPPALAM, P,O CHANGAMPUZHA NAGAR PIN-682 033. R1 & R2 BY PUBLIC PROSECUTOR MR. S.U. NAZAR. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 12/08/2009,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO.2635 OF 2009 ------------------------------------------ Dated 12th August 2009 O R D E R Petitioners are accused in C.C.387/2008 on the file of Judicial First Class Magistrate-II, Aluva. This petition is filed under Section 482 of Code of Criminal Procedure to quash Annexure-A1 final report submitted before the learned Magistrate on which cognizance of the offences under Sections 420, 465, 468, 469, 471 read with Section 34 of Indian Penal Code was taken by the learned Magistrate. 2. Learned counsel appearing for the petitioner was heard. 3. Argument of the learned counsel appearing for petitioners is that on the materials a prima facie case is not established and in such circumstances, learned Magistrate should not have taken cognizance of the offence. On hearing the learned counsel appearing for petitioners it is clear that contentions raised by the petitioners are matters to be considered by the Magistrate while framing CRMC 2635/09 2 charge. Before framing charge under Section 240 of Code of Criminal Procedure, learned Magistrate is bound to hear the petitioners apart from prosecution and only if petitioners are not discharged, charge could be framed. Petitioners are entitled to file application before the learned Magistrate for discharge under Section 239 of Code of Criminal Procedure and raise all the contentions raised herein. If grievance of the petitioners is that in that case petitioners have to personally appear before the Magistrate, petitioners are at liberty to apply before the learned Magistrate for exemption from appearance for the purpose of hearing the application under Section 239 of Code of Criminal Procedure. If such an application is filed, learned Magistrate to consider it in accordance with law and pass appropriate orders. Petition is disposed. M.SASIDHARAN NAMBIAR, JUDGE. uj.