IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 917 of 2010()
1. SREEKUMAR.A., S/O.AYYAPPAN,
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
For Petitioner :SRI.R.ANIL
For Respondent : No Appearance
The Hon'ble MR. Justice V.RAMKUMAR
Dated :18/05/2010
O R D E R
V. RAMKUMAR, J.
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Crl.M.C..No.917 of 2010
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Dated this the 18th day of May, 2010
ORDER
Petitioner, who is the sole accused in Crime No.780/2005 of
Kazhakkoottam Police station and now pending before the J.F.C.M-
III, Thiruvananthapuram as C.P.No.26 of 2006 for offences
punishable under Sections 279,337,338 and 304 IPC seeks to quash
Annexure A1 FIR and AI(a) final report.
2. Admittedly non-bailable warrants of arrest are pending
against the petitioner from J.F.C.M-III, Thiruvananthapuram in the
above C.P.case.
3. According to the petitioner, incorporation of Section 304
IPC is totally uncalled for since the requisite intention or
knowledge even according to the prosecution records were totally
absent.
4. Since the Magistrate has already taken cognizance of the
offences punishable under Sections 279,337,338 and 304 IPC and
has taken the case on the file as C.P.No.26 of 2006, it is not
possible for the Magistrate to go back to the pre-cognizance stage
and delete the offence punishable under Section 304 IPC from
Crl. M.C. No. 917 of 2010
2
cognizance. The remedy of the petitioner is to make his
submissions before the Court of Session after committal and in
case the Sessions Court is convinced that as against Section 304
IPC, the offence which is made out is only one punishable under
Section 304A IPC, that Court can exercise the power under
Section 228(1)(a) Cr.P.C and transfer the case either to the CJM or
any Judicial Magistrate of First Class for trial. That court can also
discharge the petitioner if the prosecution records so warrant.
This Crl.M.C is accordingly disposed of permitting the
petitioner to surrender before the Magistrate within two weeks
from today and apply for regular bail. In case the petitioner does
so, the learned Magistrate shall release him on bail on appropriate
conditions. It shall be open to the petitioner to argue before the
Sessions Court after committal that Section 304 IPC is not made
out from the prosecution records. It shall be open to the petitioner
to argue for a discharge or in the alternative to argue that as
against Section 304 IPC the offence which is made out is only one
punishable under Section 304 A IPC.
Dated this the 18th day of May, 2010.
V. RAMKUMAR, JUDGE
sj