ORDER

Dated this the 9th day of June 2022 The petitioner is the 2nd accused in crime No.341/2019 of Manjeshwar Police Station, which is now pending as C.C. No.290/2020 before the Judicial First Class Magistrate's Court-II, Kasaragod. The offences alleged against the petitioner are under Sections 353, 506(i) and 225 read with Section 34 of the Indian Penal Code.

2. The prosecution case is that, on 02.09.2019, the defacto complainant, who is a Civil Police Officer was instructed by the Sub Inspector of Police, Manjeshwar Police Station that the accused in crime No.163/2019 of Manjeshwar Police Station, who was required to be arrested in connection with the aforesaid crime, was watching cricket at the Uppala Mannamkuzhi Stadium and the defacto complainant was asked to restrain the accused, so as to facilitate his arrest by the Sub Inspector. In compliance of the said instruction, the defacto complainant along with another Civil Police Officer went to the Stadium in 'mufthi' and upon reaching there at by 4.45 p.m., they found the accused in crime No.163/2019. After identifying him, they apprehended him. While so, the said person who is the 1st accused in this crime, allegedly threatened the defacto complainant and the Civil Police Officer. Thereupon, the petitioner herein, who is arrayed as the 2nd accused in this case had removed the 1st accused from the place of occurrence in a Scooter. Annexure-A1 is the FIR and Annexure-A2 is the final report submitted by the Police. This Crl.M.C. is filed for quashing all further proceedings pursuant to Annexure-A2 final report.

3. Heard Sri. T. Madhu, the learned counsel appearing for the petitioner, Smt. Nima Jacob, the learned Public Prosecutor for the State.

4. The main contention put forward by the learned counsel for the petitioner is that the offences alleged in the aforesaid case are not attracted against the petitioner herein. According to the learned counsel for the petitioner, the offence under Section 353 would get attracted only if it is shown that the defacto complainant was discharging his duties at the relevant time. It is pointed out that, in this case even according to the prosecution, the defacto complainant and the other Civil Police Officer were on civil dress without wearing uniform. It is also pointed out that the arrest of the 1st accused which was sought to be conducted by the defacto complainant were not in the manner contemplated under provisions of Cr.P.C. The stipulations contained in Section 41B mandates that the arrest can be affected only by an officer in uniform. As regards the offence under Section 225 of the I.P.C., it is pointed out that, the aforesaid offence also would get attracted, only when resistance of obstruction is made during the course of an attempt of arrest by following the procedure contemplated under Section 41B. According to the learned counsel for the petitioner, as the defacto complainant and the other Civil Police Officer were not in uniform, it cannot be treated as an attempt on their part to arrest the 1st accused in the manner as contemplated under the provisions of Cr.P.C.

5. In such circumstances, the offences under Sections 225 and 353 are not attracted, contends the learned counsel for the petitioner. With regard to the offence under Section 506 of the I.P.C., it is pointed out that even as per the prosecution case, the aforesaid offence was committed by the 1st accused as the threat was allegedly made by the 1st accused, and not by the petitioner herein.

6. Having perused all the records, I am of the view that, the aforesaid questions need not be considered by this Court at this stage of proceedings. This is particularly because the petitioner is having an opportunity to raise all these contentions before the trial court and seek for discharge. Since the petitioner has not exhausted the said remedy, it is only proper that he be relegated, to do so.

In such circumstances, the Crl.M.C. is closed without prejudice to the right of the pet