IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 13TH NOVEMBER 2009 / 22ND KARTHIKA 1931 Crl.MC.No. 3326 of 2009() ------------------------------------ CC.1097/2003 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, ATTINGAL .................... PETITIONER/ACCUSED --------------------------------- JOY, S/O.ANANDAN, MADATHIL PUTHEN VEEDU, KADASSERI, PUNNALA VILLAGE, PATHANAPURAM TALUK, KOLLAM DISTRICT. BY ADV. MR.C.RAJENDRAN RESPONDENT(S): ------------------------ 1. VIKRAMAN, S/O.THANKAPPAN, MELELA VEEDU, MANGALAPURAM, EDAVILAKAM MURI, VEYILOOR, THIRUVANANTHAPURAM. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR MR.S.U. NAZAR. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 13/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No. 3326 of 2009 ORDER ON CRL.MA.NO.5714/2009 IN CRL.MC.NO.3326/2009 DISMISSED 13/11/2009. SD/- M.SASIDHARAN NAMBIAR, JUDGE //TRUE COPY// P.S. TO JUDGE rs. M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No.3326 OF 2009 =========================== Dated this the 13th day of November,2009 ORDER Petitioner is the accused in C.C.1097/2003 on the file of Judicial First Class Magistrate Court-II, Attingal taken cognizance by the learned Magistrate on Annexure A1 complaint. This petition is filed under section 482 of Code of Criminal Procedure to quash Annexure A1 complaint and the proceedings initiated by the learned Magistrate. 2. Learned counsel appearing for the petitioner was heard. 3. The argument of the learned counsel appearing for the petitioner is that the ingredients of the offence under section 379 IPC is not attracted. The petitioner has not produced the order taking cognizance of the offence. If cognizance was taken on Annexure A1 complaint, it can only be after an inquiry under section 200 or 202 of the Code of Criminal Procedure. In that case petitioner is definitely entitled to cross examine the first respondent and his witnesses when they are examined under section 244 of Code of Criminal Crl.M.C.3326/2009 2 Procedure and seek an order of discharge under section 245 of Code of Criminal Procedure. 4. Learned counsel appearing for the petitioner submitted that Court has not so far framed the charge. 5. In such circumstance, petition is disposed granting liberty to the petitioner to seek an order of discharge under section 245 of Code of Criminal Procedure raising all the contentions raised herein. Learned counsel submitted that presence of the petitioner may not be insisted for that purpose. It is for the petitioner to file an application under section 205 of Code of Criminal Procedure before the learned Magistrate to dispense with his presence and if the petition is filed, learned Magistrate to consider it and pass appropriate orders in accordance with law. Petition is disposed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006