IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 7TH AUGUST 2009 / 16TH SRAVANA 1931 Crl.MC.No. 1654 of 2009() ------------------------------------ CC.53/2008 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, ATTINGAL CRIME NO.326/2006 OF KILIMANOOR POLICE STATION. .................... PETITIONER/1ST ACCUSED ---------------------------------------- SATHYARAJ, S/O.DAMODARAN, KALABHAVAN, VENNICHIRA, PONGANADU, KILIMANOOR VILLAGE. BY ADV. MR.P.M.HABEEB RESPONDENT/STATE ------------------------------ 1. STATE OF KERALA, REP.BY PUBLIC PROECUTOR HIGH COURT OF KERALA, ERNAKULAM (CRIME NO.326 OF 2006 OF KILIMANOOR POLICE STATION). * ADDL. R2 IMPLEADED ADDL. R2: HAREENDRADAS @ BABY KUTTAN, AGED 57 YEARS, “MIDHILA”, PONGANADU DESOM, KILIMANOOR VILLAGE, PONGANAD. * IMPLEADED AS ADDL. R2 AS PER ORDER DATED 03/07/2009 IN CRL.MA. NO.3399/2009. R1 BY PUBLIC PROSECUTOR MR.B. VINOD. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 07/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO.1654 OF 2009 ------------------------------------------ Dated 7th August 2009 O R D E R Petitioner is the first accused in C.C.53/2008 on the file of Judicial First Class Magistrate-II, Attingal. This petition is filed under Section 482 of Code of Criminal Procedure to quash the case as an abuse of process of the court. Case against petitioner and second accused is that due to enmity, at the instigation of petitioner two accused trespassed into the car porch of the house of second respondent, the defacto complainant and using abusive words threatened to kill him and thereby committed offences under Sections 447, 294 (b), 506(ii) and 109 read with Section 34 of Indian Penal Code. 2. Learned counsel appearing for petitioner and learned Public Prosecutor were heard. 3. Learned counsel appearing for petitioner submitted that person who allegedly trespassed is second accused and he is no more and charge as against him is thereby abated and only CRMC 1654/09 2 allegation against the petitioner is that it is at his instigation the other accused committed trespass and intimidated him using abusive language scolded the second respondent. Learned counsel argued that there is absolutely no material to support the prosecution case that second accused did the alleged act at the instigation of the petitioner. It was argued that except assertion of the witness as seen from their statement recorded under Section 161 of Code of Criminal Procedure, there is no basis for the allegation as against the petitioner. 4. On hearing the learned counsel I do not find that on appreciation of the evidence tendered by the second respondent earlier and his witnesses the case could be quashed under Section 482 of Code of Criminal Procedure. Appreciation of evidence is not the function of this court while exercising powers under Section 482 of Code of Criminal Procedure. When statement recorded under Section 161 discloses the allegation, it is not for the court to appreciate that evidence and to enter a factual finding whether those witnesses are reliable and whether their versions could be accepted without CRMC 1654/09 3 further corroboration. Hence based on that on the weakness of the evidence as canvassed by the petitioner the case cannot be quashed. Petitioner is entitled to raise all the contentions before the learned Magistrate at the time of trial. Petition is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.