IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 17TH AUGUST 2009 / 26TH SRAVANA 1931 Crl.MC.No. 2510 of 2009 ------------------------- CC.8/2009 of JUDL. MAGISTRATE OF FIRST CLASS COURT-III, TRIVANDRUM .................... PETITIONER/ 4TH ACCUSED: ----------------------------------------- ASIF, S/O.MUHAMMED SALI, METHOD HOUSE, TC 20/273(1), SURYA NAGAR, ARANNOOR WARD, THYCAUD VILLAGE, THIRUVANANTHAPURAM. BY ADV. SRI.G.SUDHEER RESPONDENT/COMPLAINANT: ------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. S.U.NAZAR. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 17/08/2009, ALONG WITH CRMC.2511 OF 2009 AND OTHERS THE COURT ON THE SAME DAY PASSED THE FOLLOWING: app/- M.SASIDHARAN NAMBIAR, J. ================== Crl.M.C. Nos.2510, 2511, 2519, 2520 & 2521 of 2009 ===================== Dated this the 17th day of August, 2009. O R D E R Petitioner is the 4th accused in C.C.No.8/2009, C.C.No.134/2009, C.P.No.11/2009, C.C.No.67/2009 and C.C.No.144/2009 on the file of Judicial First Class Magistrate Court-III, Thiruvananthapuram. The allegation against the petitioner and the other accused are that they committed offences under Section 379, 201 and 413 read with Section 34 of Indian Penal Code. These petitions are filed under Section 482 of Code of Criminal Procedure to quash the cases as against the petitioner contending that there is absolutely no material to connect petitioner with the offences alleged. It was argued that in all the cases prosecution sought to connect petitioner with the offences based on a statement of solitary witness and even if the statement is accepted, it will not establish that petitioner committed any of the offences. Crl.M.C. Nos.2510, 2511, 2519, 2520 & 2521 of 2009 2 2. Learned Public Prosecutor submitted that there are materials to connect petitioner with the offences. 3. On hearing the learned counsel for the petitioner, I do not find it necessary for this court to consider the sufficiency of the evidence at this stage when petitioner can seek an order of discharge from the learned Magistrate under section 239 of Code of Criminal Procedure. Petitioner is entitled to file an application of discharge and is also entitled to raise all the contentions raised herein including the case that there is no material whatsoever to connect the petitioner with the offences. The learned counsel appearing for the petitioner submitted that in one case a non-bailable warrant is issued and unless petitioner surrenders, learned Magistrate may not hear the petitioner and if petitioner is to surrender, he will be remanded. I do not believe that when the petitioner surrenders and file an application for bail, learned Magistrate will not grant bail or will be remanded as canvased. If apprehension of the Crl.M.C. Nos.2510, 2511, 2519, 2520 & 2521 of 2009 3 petitioner is that on his appearance, Magistrate may remand the petitioner, petitioner is at liberty to file application. Learned Magistrate in each of the cases to consider the claim for discharge under Section 239 of Code of Criminal Procedure, after dispensing with his presence. He is entitled to file a petition under Section 239 of Code of Criminal Procedure. The learned Magistrate on filing such application, shall not insist for the presence of the petitioner for the purpose of hearing the petition under Section 239 of Code of Criminal Procedure. Petitions are disposed. M.SASIDHARAN NAMBIAR, JUDGE app/-