IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 7TH MARCH 2011 / 16TH PHALGUNA 1932 Crl.MC.No. 694 of 2011() ----------------------------------- C.C.486/2009 of JUDICIAL MAGISTRATE OF FIRST CLASS COURT, ALATHUR .................... PETITIONER(S)/ 1ST ACCUSED --------------------------------------------- R.SIVASANKARAN, AGED 43 YEARS, MACHIRA HOUSE,PATTIPARAMBU POST, THIRUVILWAMALA,THRISSUR DISTRICT. BY SRI.P.G.THAMPI, SENIOR ADVOCATE BY ADV. SRI.G.PRIYADARSAN THAMPI RESPONDENT(S): STATE/COMPLAINANT -------------------------------------------------------------- STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. BY PUBLIC PROSECUTOR SMT.M.K. PUSHPALATHA THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 07/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts THOMAS P.JOSEPH, J. ==================================== Crl. M.C. No.694 of 2011 ==================================== Dated this the 07th day of March, 2011 O R D E R It is stated that on 04.10.2010 petitioner, a police Officer had parked his Car at a junction where six persons including the husband of de facto complainant came on motor bikes and made scratch marks on the petitioner’s Car. At that time one Gopi came to the said persons and told them that the Car belonged to a Police Officer. The said persons assaulted Gopi. By the time petitioner came there and those persons escaped on their motor bikes. After 8 days the wife of one of the six persons gave a (false) complaint against petitioner and the second accused. Petitioner has been falsely implicated, it is contended. Learned Senior Advocate contended that the broad circumstances of the case has to be considered. It is pointed out that the first information itself was launched after about 8 days of the incident and that the wound certificates of the de facto complainant and her husband would show that no sort of injury was caused to them while the wound certificate of Gopi referred to above would show that he suffered injury but the police did not take action. It is also the submission of the learned Senior Advocate that there is political Crl. M.C. No.694 of 2011 -: 2 :- animosity in the Alathur police registering a case against petitioner as before his selection as Sub Inspector he had contested election to the local authority on a party ticket. 2. I have gone through the records. In the first information statement given by the de facto complaint to the Alathur police on 13.10.2009 at about 5.p.m. it is stated that the alleged incident occurred at her house on 05.10.2009 at about 00.30 hours. She stated that the second accused along with about 30 others came to her house and called her husband. When she opened the door the second accused assaulted her and her husband. It is also stated that in the courtyard there were several persons including a person whom the de facto complainant later identified as a police Sub Inspector (referring to the petitioner). Annexures-A4 and A5 are wound certificates of the de facto complaint and her husband. There, it is stated that there were no external injuries and in column No.13 it is not mentioned that information was given to the police. It is seen from Annexures-A4 and A5 that de facto complainant and her husband were examined by the Medical Officer in the Community Health Centre at 9.00 and 9.15 a.m. respectively on the day of alleged incident. It is also seen from the said documents that the de facto complainant and her husband told the Medical Officer Crl. M.C. No.694 of 2011 -: 3 :- that they were assaulted by two persons who trespassed into the house. 3. Annexure-A2 is the wound certificate of Gopi who allegedly told the six persons on 04.10.2009 at about 9.0 p.m. that they have caused scratch marks on the vehicle belonging to the Police Officer (petitioner). In Annexure-A2 it is stated that he was examined on 05.10.2009 at 8.15 a.m. (though the alleged incident in which Gopi sustained injury was on 04.10.2009 at 9.00 p.m.). The alleged cause of injury stated by Gopi is assault by four persons. Annexure-A3 is produced to show that intimation was given to the local police regarding the injury suffered by the said Gopi. 4. I am not inclined to think at this stage that the de facto complainant is responsible if the police has not registered a case for alleged assault on Gopi or that the Medical Officer who examined the de facto complaint and her husband had not given intimation to the police as seen from Annexures-A4 and A5. I am also not inclined to think at this stage that it was because the Medical Officer was satisfied that allegation made by the de facto complainant and her husband was false that he had not given intimation to the local police. As it was a medico legal case, the Crl. M.C. No.694 of 2011 -: 4 :- Medical Officer could not have arrived at any such decision and refused to give intimation to the police. These are matters to be considered in evidence. 5. So far as the delay in filing of Annexure-A6 first information statement is concerned, it is stated by the de facto complainant in Annexure-A6 itself that she was under the impression that the matter would be settled by the social workers of the area and hence there was delay in her lodging first information statement. It is not as if she has no explanation for the delay. Whether that explanation is to be accepted or not is a matter for evidence. 6. It is true that no overt act is attributed to the petitioner. But I must bear in mind the various circumstances in which the alleged incident occurred. That incident occurred in the courtyard and house of the de facto complainant on 05.10.2009 at about 00.30 hours. Along with the second accused petitioner also was allegedly present. Petitioner has to explain to the reason for his presence there, at the time of incident. Whether that presence is sufficient to attract common intention under Section 34 of the IPC is a matter which the trial court has to decide. I believe that this Court exercising power under 482 of the Code of Criminal Procedure is not required to go into that question which is one of fact and say that there is no common intention involved Crl. M.C. No.694 of 2011 -: 5 :- and hence proceeding against petitioner has to be quashed. 7. The contention based on political animosity is also a matter which the trial court has to decide in the course of trial. In the circumstances request to quash proceeding against petitioner cannot be granted. 8. Learned Senior Advocate submitted that learned Magistrate has issued warrant against petitioner and requested that execution of warrant may be stayed granting opportunity to petitioner surrender before the court concerned. I am inclined to allow that request. Criminal Miscellaneous Case is dismissed. But it is directed that the warrant issued to the petitioner by the learned Judicial First Class Magistrate, Alathur in C.C No.486 of 2009 will stand in abeyance for a period of three weeks from this day. In the meantime it is open to the petitioner to approach the court concerned and seek regular bail as provided under law. THOMAS P. JOSEPH, JUDGE. vsv