Shinu J. Pillai vs Taha Musthafa

A. Hariprasad, J.—Petition filed under Section 482 of the Code of Criminal Procedure (in short, "Cr.P.C.").

Petitioner is the 9th accused in C.P. No. 121 of 2013 pending on the file of Judicial First Class Magistrate Court-I, Haripad. He is involved in Crime No. 73 of 2011 of Thrikkunnapuzha Police Station registered under Sections 143, 147, 148, 149, 323, 324, 307 and 120B of the Indian Penal Code. Annexure-B is the final report. The allegations in the final report, stated shortly, are as follows: The accused persons were inimical towards CWs 1 to 3, 6 and 7. On 08.03.2011 at about 12 ''O'' clock in the night, while CWs 1 to 3 were proceeding on a motor cycle, accused 1 to 8, 10 and 11 formed themselves into an unlawful assembly, restrained the said witnesses and attacked them with knife, iron rod, etc. and thereby they have committed the above said offences. Allegation against the petitioner is that he was contacting the 1st accused through phone and he is an active conspirator in the incident.

Heard the learned counsel for the petitioner and the learned counsel for the 1st respondent/ de facto complainant. Learned Public Prosecutor is also heard.

The prayer in the petition is as follows:

"For these and other grounds which may be urged at the time of hearing it is most humbly prayed that this Honourable Court may be pleased to allow the Criminal Miscellaneous Case, quash Annexure A F.I.R., Annexure B Final report and all further proceedings in C.P. No. 121 of 2013 on the file of the Court of Judicial First Class Magistrate-I, Haripad as against the petitioner/A9, so as to secure the ends of justice."

Learned counsel for the petitioner submitted that there are material contradictions in the versions shown in the first information statement and those in the final report in respect of the petitioner''s role in the alleged offence. Therefore, it is submitted that the petitioner, if asked to stand a trial, no offence could be made out in view of the contradictory evidence submitted by the Police before the court, in the form of the final report. Learned counsel for the 1st respondent/complainant submitted that there are specific allegations levelled against the petitioner as perpetrator of the crime. Considering facts and circumstances of the case, I do not wish to enter any decision on the merits of the matter. On consideration of the entire facts and circumstances, I find that this is not a fit case to invoke the jurisdiction of this Court under Section 482 Cr.P.C. Petitioner, if so advised, can approach the court below and seek a discharge. I find that the prayer is not legally allowable.

Learned counsel for the petitioner relying on Vikraman Vs. State of Kerala, requested for indulgence of this Court to allow the petitioner to participate in the committal proceedings represented through a counsel. The principle in Vikraman''s case (supra) reads as follows:

"A survey of S. 317, 438 and 439(t) of the Code indicates that it is not necessary to Insist on the physical presence of the accused in court when the case is committed to the Court of Session, provided the accused has already appeared and is represented by a counsel, Thus the Magistrate has the power to proceed with the enquiry and commit the case even in the absence of the accused in court in certain cases. In a case where the accused made his appearance, or is brought before the Magistrate and is released on bail as per orders of the High Court or Court of Session, the Magistrate will be within his powers to pass the order of commitment even in the absence of the accused, if the absentee accused can be allowed to be represented by his counsel."

Considering the precedents on the point, I dispose of the Crl. M.C. with following directions:

Prayer in the petition is disallowed. Petitioner shall appear through counsel in the committal proceedings and if so advised, he can seek discharge before the Sessions Court at the time of framing charge. During that time, if the petitioner files an application for personal exemption, the court below shall permit him to claim discharge without insisting on his personal presence.

All pending interlocutory applications will stand dismissed.