Cheriyan Koshy v. State of Kerala and Susan Abraham

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **TUESDAY, THE 27TH DAY OF MAY 2014/6TH JYAISHTA, 1936** **Crl.MC.No. 1946 of 2013 () ---------------------------** **AGAINST THE ORDER/JUDGMENT IN CC 484/2009 of J.M.F.C.,THIRUVALLA DATED** ## **PETITIONER/ACCUSED NO.1:** **------------------------** **CHERIYAN KOSHY, AGED 45 YEARS S/O.KOSHY CHERIYAN, KEERIKKATTU HOUSE, R.S.P.O KOTTUPUZHA, THIRUVALLA.** **BY ADVS.SRI.B.RAMAN PILLAI** **SRI.R.ANIL SRI.M.SUNILKUMAR SRI.SUJESH MENON V.B. SRI.T.ANIL KUMAR SRI.MANU TOM SRI.THOMAS ABRAHAM (NILACKAPPILLIL)** **RESPONDENTS/STATE & COMPLAINANT:** **--------------------------------** ## **1. STATE OF KERALA,** - **REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.** ## **2. SUSAN ABRAHAM,** - **PATHINETTIL VEETIL, PADUTHODU MURI, PURAMATTOM VILLAGE PADUTHODE(PO), THIRUVALLA, PATHANAMTHITTA DISTRICT PIN-689645.** **R2 BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR R1 BY PUBLIC PROSECUTOR SRI. VIJU THOMAS (Sr.)** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 2705-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **Crl.MC.No. 1946 of 2013 () ---------------------------** ## **APPENDIX** ## **PETITIONER'S ANNEXURES** ## **------------------------** **ANNEXURE-A THE TRUE COPY OF THE ORDER IN CRL.M.C.NO.3336 OF 2009 OF THIS HON'BLE COURT DATED,19-1-2010.** - **ANNEXURE-B THE CERTIFIED COPY OF THE ORDER SHEET OF THE JUDICIAL FIRST CLASS MAGISTRATE,THIRUVALLA IN C.C.484 OF 2009 FOR THE PERIOD FROM 20-10-2009 TO 20-4-2013.** - **ANNEXURE-C THE CERTIFIED COPY OF THE ORDER SHEET OF THE JUDICIAL FIRST CLASS MAGISTRATE,THIRUVALLA IN C.C.312 OF 2005 FOR THE PERIOD FROM 12-7-2005 TO 4-4-2013.** - **ANNEXURE-D THE CERTIFIED COPY OF THE COURT CHARGE OF THE JUDICIAL FIRST CLASS MAGISTRATE, THIRUVALLA DATED, 4.4.2013.** - **ANNEXURE-E THE TRUE COPY OF THE PETITION FILED BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE, THIRUVALLA DATED 17.4.2013.** **RESPONDENTS' ANNEXURES: NIL.** **----------------------** ## **TRUE COPY** ## **P.A. TO JUDGE.** **KP** ## **P.D. RAJAN, J.** ======================== Crl. M.C. No. 1946 of 2013 -------------------------------------------Dated this the 27[th] day of May, 2014 ## **ORDER** This petition is filed under Section 482 Cr.P.C to quash Annexure D charge framed by the Judicial First Class Magistrate Court, Thiruvalla against the petitioner in C.C. 484/2009 pending before the above Court. The petitioner is the first accused in the above case which was filed under Section 498 A read with section 34 of IPC by the second respondent. The petitioner appeared before the Court on 4.4.2013 as per summons and was enlarged on bail. On the same day itself, the learned Magistrate framed Annexure D charge without considering the mandatory provisions under Section 273 of the Cr.P.C., which is the right of the petitioner to take all evidence in his presence. Without complying such procedural formalities, Annexure D charge was framed. If the trial is proceeded based upon Annexure D, much prejudice will be caused to him and it is contended that trial will be vitiated by non compliance of the above provisions. The petitioner also contended that there is violation of the direction Crl. M.C. No. 1946 of 2013 -2- issued by this Court in Crl. M.C. No. 3336/2009 dated 19.1.2010 and hence he prays to invoke the inherent jurisdiction by quashing Annexure D. 2. The second respondent's allegation in the aforesaid complaint was that the petitioner married the second respondent as per the Christian religious rites and that the petitioner illtreated her both physically and mentally, demanding more amount as dowry. In the circumstances she filed the aforesaid compliant before the Judicial First Class Magistrate's Court, Thiruvalla. This was sent for investigation under Section 156(3) of Cr.P.C which was registered as Crime No. 307/2004 of Thiruvalla Police Station. On completing investigation, final report was filed only against the second accused as per C.C. No. 312/2005 before the JFCM, Thiruvalla. In the circumstances R2 filed this complaint against other accused including A2 and A3 which is under trial in that Court. The learned Magistrate examined PW1 and PW2 on 18.1.2013 and 1.2.2013 and petitioner received summons only on 4.4.2013. On the same day itself Annexure D charge was framed. This matter was brought to the notice of the Court on 17.4.2013. In the circumstances petitioner approached this Court. Crl. M.C. No. 1946 of 2013 -3- ## 3. Before considering the arguments advanced by both counsel, it is relevant to extract Section 244 of Cr.P.C. “244. Evidence for prosecution. - (1) When, in any warrant-case instituted otherwise than on a police report, the accused appears or is brought before a Magistrate, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution. (2) The Magistrate may, on the application of the prosecution, issue a summons to any of its witnesses directing him to attend or to produce any document or other thing.” According to the above Section, in a case instituted otherwise than on a police report, when the accused is brought before the Magistrate, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution. The Magistrate may, on application of the prosecution or de-facto complainant issue summons to other witnesses directing to attend or to produce any document or other things as demanded. It is the power of the judicial Magistrate to record evidence after appearance of the accused brought before him. 4. In this case, after getting summons, the third accused appeared and took bail. The petitioner appeared before the Crl. M.C. No. 1946 of 2013 -4- Magistrate only on 4.4.2013 and on the same day itself learned Magistrate framed a charge. The recording of evidence was started before appearance of the petitioner. According to Section 244 of the Cr.P.C, when accused appears or brought before the Magistrate, he is required to hear the prosecution and to take such evidence as may be produced in support of the prosecution. The word 'hear' in this matter clearly indicates that the Court shall have to give right of audience to the prosecution regarding the evidence that it wants to produce. The words “may be produced” clearly say about the liberty of determining the order of evidence which is the choice of the prosecution. Therefore, the Magistrate is required to take all evidence that may be produced by the prosecution in the presence of the accused or his pleader and he cannot pass any order of discharge or frame charge without hearing the accused. At this stage, the Magistrate need only consider the prima facie evidence with regard to the allegation. Only after considering that aspect and taking all evidence under Section 244, the Magistrate has power to discharge him, if no case is made out against him. When such evidence has been taken at the previous stage of the case and if the Magistrate is of the opinion that there is ground for Crl. M.C. No. 1946 of 2013 -5- presuming that the accused has committed any offence triable in a case instituted otherwise than on police report, he shall frame in writing a charge against the accused. Here the petitioner has a right to hear under Section 244 which was not done by the learned Magistrate. According to Section 273 of the Cr.P.C, all evidence taken in the course shall be taken in the presence of accused or in the presence of his pleader if his personal attendance is dispensed with. Here on the date of appearance itself, without hearing the petitioner Annexure D charge was framed which is in violation of Section 244 and 245 of Cr.P.C. Therefore the petitioner is to be heard before framing the charge. 5. There is also another direction by this Court in Crl.M.C No.3336/2009. Paragraph '6' of the said Crl.M.C reads as follows: “6. Though learned counsel challenged the materials, based on which the cognizance was taken, it is for the petitioner to raise these contentions before the Magistrate at the time of hearing under Section 245 of Code of Criminal Procedure, after recording the evidence of the complainant and his witnesses, as provided under Section 244 of Code of Criminal Procedure.” ## The learned counsel appearing for the petitioner contended that Crl. M.C. No. 1946 of 2013 -6- violation of the above aspects are clear from Annexure B and C documents which are the extract of the proceedings before the JFCM, Thiruvalla. The learned counsel appearing for the respondents has also no dispute with regard to the above procedure adopted by the learned Magistrate. Hence this is a fit case to invoke inherent jurisdiction under Section 482 of the Cr.P.C. 6. According to Section 482 of the Cr.P.C, the inherent jurisdiction can be invoked to prevent abuse of process of Court to make such orders as may be necessary or to give effect to any order or to secure ends of justice. In **State of Haryana v. Bhajanlal** (1992 SCC Crl. 426) Apex Court held as follows: “(1) Where the allegations in the FIR/complaint, even if they are taken at their face value do not prima facie constitute any offence against the accused. (2) Where the allegations in the FIR of other materials do not constitute a cognizable offence justifying an investigation by the police under Section 156(1) of the code except under an order of a Magistrate within the purview of Section 155(2). (3) Where the uncontroverted allegations in the FIR/complaint and the evidence collected thereon do not disclose the commission of any offence. (4) Where the allegations in the FIR/complaint do not constitute any cognizable offence but constitute only non-cognizable offence to which no investigation is permitted by the police without the order of Magistrate under Section 155(2). Crl. M.C. No. 1946 of 2013 -7- (5) Where the allegations are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Statute concerned (under which the proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the code or in the statute concerned, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accuse with a view to spite him due to private and personal vengeance.” Therefore, the facts and circumstances of this case shows that Annexure D charge framed by the learned Magistrate is to be quashed. 7. Hence I quash Annexure D and direct the learned Magistrate to hear the petitioner and to give him an opportunity to take all contentions under Section 244 and 245 as per law. If petitioner wishes to cross examine the witnesses at that stage, the Magistrate is at liberty to consider that also. This petition is allowed. **P.D. RAJAN, JUDGE.** kp/-