IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 18TH NOVEMBER 2010 / 27TH KARTHIKA 1932 Crl.MC.No. 4369 of 2010(E) ------------------------- (CC.1371/2009 of JUDL.MAGISTRATE OF FIRST CLASS-I, KOLLAM FIR NO.58 OF EAST KALLADA POLICE STATION) .................... PETITIONER/ACCUSED -------------------------------- C.SHAJI, S/O. S.CLETUS, AGED 41 YEARS, ANUGRAHA, THEKKEMURI, EAST KALLADA, KOLLAM DISTRICT. BY ADVS. SMT.A.G.ANEETHA SMT.M.KABANI DINESH RESPONDENTS/STATE & DEFACTO-COMPLAINANT ----------------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-31. 2. N. SASIDHARAN, S/O. NARYANAN, VADAKKEBHAGATHU PUTHEN VEEDU, KODUVILA, KIZHAKKE KALLADA, KOLLAM DISTRICT. PIN-691502. BY PUBLIC PROSECUTOR, SRI.M.R.VENUGOPAL THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 18/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: VK M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No. 4369 OF 2010 =========================== Dated this the 18th day of November,2010 ORDER Petitioner the fourth accused in C.C.1371/2009 on the file of Judicial First Class Magistrate Court-I, Kollam taken cognizance for the offence under sections 143, 147,148, 427, 452, 506(ii) read with section 149 of Indian Penal Code filed this petition under section 482 of Code of Criminal Procedure to quash the proceedings. 2. Learned counsel appearing for the petitioner and the learned Public Prosecutor were heard. 3. Learned counsel appearing for the petitioner challenged the cognizance taken contending that petitioner, a Government servant working as Head Warden in Crl.M.C.4369/2010 2 Mattancherry Sub Jail was not at the scene of occurrence at all and the witnesses sought to be examined are all interested persons and in such circumstances even if petitioner is to be tried, there is no likelihood of a successful prosecution and hence the case is to be quashed. 4. Based on the plea of alibi raised by the petitioner the cognizance taken by the learned Magistrate cannot be quashed as it is a matter which could be decided only on evidence. Similarly the reason that the witnesses to be examined are related to the de facto complainant is not a ground to quash the proceedings. These are all matters to be considered by the Magistrate on trial. Petitioner is entitled to raise all the contentions before the Magistrate and seek an order of discharge under section 239 of Code of Criminal Procedure. Crl.M.C.4369/2010 3 Petition is disposed granting liberty to the petitioner to raise all the contentions raised herein before the Magistrate and seek an order of discharge under section 239 of Code of Criminal Procedure. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006