Criminal Miscellaneous Case No. 4888 of 2016 (A) (C.C. 518/2016), High Court of Kerala at Ernakulam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 17TH DAY OF DECEMBER 2020 / 26TH AGRAHAYANA, 1942** ## **Crl.MC.No.4888 OF 2016(A)** **CC 518/2016 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,KOZHIKODE** **CRIME NO.174/2012 OF Kasaba Police Station, Kozhikode** ## **PETITIONERS/ACCUSED 1, 2 & 3:** - **1 P. KRISHNAN REITRED CHIEF MANAGER, 'PERUMBIL HOUSE, VAIDYARANGADI PO, 673633, RAMANATTUKARA, KOZHIKODE.** - **2 ELIZABETH NETTO WORKING AS CHIEF MANAGER,CANARA BANK, THAMBU CHETTY STREET BRANCH,CHENNAI-600001.** - **3 CHANDRIKA R. SENIOR MANAGER, CANARA BANK,REGIONAL OFFICE, R.S.PURAM, COIMBATORE-641002.** **BY ADVS.** **SRI.M.GOPIKRISHNAN NAMBIAR SRI.P.BENNY THOMAS SRI.K.JOHN MATHAI SRI.JOSON MANAVALAN SRI.KURYAN THOMAS** ## **- RESPONDENTS/STATE & DE FACTO COMPLAINANT:** - **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM.** - **2 M.C.PRIYAMVADA FLAT NO.101, SREEJIKETHAN APARTMENTS,NEAR LIC, CHALAPPURAM, KOZHIKODE-2.** ## **BY ADVS. SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR** - **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON** - **17.12.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C No. 4888 of 2016 2 ## ALEXANDER THOMAS, J. -----------------------------------Criminal M.C. No. 4888 of 2016 -----------------------------------Dated this the 17[th] day of December, 2020 ## **O R D E R** The prayers in the afore captioned Criminal Miscellaneous Case filed under Sec.482 of Cr.PC are as follows: - _“(i) Quash all further proceedings in C.C No.518/2016 on the file of the Judicial First Class Magistrate’s Court-I, Kozhikode against the petitioners._ - _(ii) Grant such other reliefs as this Hon’ble Court may deem fit and proper to grant in the facts and circumstances of this case._ 2. Heard Sri.M.Gopikrishnan Nambiar, learned counsel appearing for the petitioners (accused Nos.1, 2 & 3) and Sri.Saigi Jacob Palatty, learned Public Prosecutor appearing for R1 State of Kerala. Though notice has been duly served to contest respondent No.2 (lady de facto complainant) there is no appearance for that party. 3. The afore captioned petition has been filed seeking to quash a private complaint filed by the 2[nd] respondent which has been taken on file as C.C.No.518/2016 on the file of the Judicial First Class Magistrate Court-I, Kozhikode under Secs.379, 465 and 471 read with Sec.120 B of the Indian Penal Code. The 2[nd] respondent, all Crl.M.C No. 4888 of 2016 3 throughout her career, was in the habit of raising all sorts of issues against her colleagues and superiors. She was working as Law Officer at the Circle Office of Canara Bank at Calicut and disciplinary action was initiated against her. She was placed under suspension and later dismissed. On her suspension, the 2[nd] respondent locked the draws of her official table and in spite of repeated requests refused to hand over the keys, constraining the bank to break open the same. Thereafter, 2[nd] respondent filed Anx.V complaint which was referred for investigation under Sec.156(3) Cr.P.C and Anx.VI report was filed, finding that it was a false complaint. In the meanwhile, by Anx.VII, this Court quashed proceedings initiated by the 2[nd] respondent herein against few other employees. The 2[nd] respondent then filed Anx.VIII, protest complaint, which was taken on file and summons was issued to petitioners 1 to 3, without any application of mind by the court below. 4. After hearing both sides, it is seen that the 2[nd] respondent, who was an employee of the Canara Bank, was earlier suspended from the service and she had locked the draws of her official table and in spite of repeated requests made by the superiors she had refused to hand over the keys, which constrained the petitioners to Crl.M.C No. 4888 of 2016 4 break open the same. It is thereafter, the 2[nd] respondent has filed Anx.V complaint, which was directed to the investigation by the police under Sec.156(3) of Cr.PC. The police after investigation has filed Anx.VI Final report by way of refer report finding that the complaint of the 2[nd] respondent was a false complaint. In the meanwhile, this Court as per Anx.VII order has quashed the proceedings initiated by the 2[nd] respondent herein against few other employees. It is after filing of Anx.VI refer report by the police that the 2[nd] respondent has filed the impugned Anx.VIII protest complaint, which has led to institution of Calendar Case, C.C No.518/2016 on the file of the Judicial First Class Magistrate Court-I, Kozhikode, in which the learned Magistrate has taken cognizance and has issued summons to petitioners 1 to 3. 5. After hearing both sides, it is seen that the impugned decision of the learned Magistrate to have taken cognizance of the offences alleged in Anx.VIII protest complaint, in spite of the issuance of Anx.VI refer report, in respect of the very same allegations, is illegal and ultra vires act of the learned Magistrate, inasmuch as the learned Magistrate has blatantly violated the dictum laid down by this Court in a decisions as as in _**Parameswaran**_ Crl.M.C No. 4888 of 2016 5 _**Nair v. Surendran**_ [2009 (1) KLT 794]. It has been held by this Court in _**Parameswaran Nair’s**_ case (supra) [2009 (1) KLT 794] that in such cases, a protest complaint will lie only if there was manifest error or manifest miscarriage of justice or new facts which the complainant had no knowledge of or with reasonable diligence could not have brought forward in the previous proceedings and that the Magistrate cannot therefore ignore the final report altogether and consider only the protest complaint and the sworn statement of the witnesses recorded in that enquiry. It will profitable to refer to paragraph Nos.12, 16 & 17 of the decision of this Court in _**Parameswaran Nair’s**_ case (supra) [2009 (1) KLT 794], which read as follows: _“12. If the original complaint stood dismissed by the acceptance of the refer report submitted after investigation the protest complaint if any filed can only be treated as a second complaint. If so, the protest complaint will lie only if there was a manifest error or manifest miscarriage of justice in the earlier order or new facts which the complainant had no knowledge of or with reasonable diligence could not have brought forward in the previous proceedings is adduced. When this is the legal position, it is not lawful to the Magistrate to ignore the final report submitted by the police under S.173(2) of the Code. Magistrate is bound to consider the final report and decide which of the options available to him is to be exercised._ _13. xxx xxx xxx_ _14. xxx xxx xxx_ _15. xxx xxx xxx_ _16. If Magistrate finds that in spite of all the objections raised, the final report is to be accepted he can accept it and drop the proceeding. At that stage Magistrate can entertain a second complaint. But such a complaint will lie only if there was manifest error or manifest miscarriage of justice or new facts which the complainant had no knowledge of or with reasonable diligence could not have brought_ Crl.M.C No. 4888 of 2016 6 _forward in the previous proceedings. The Magistrate cannot therefore ignore the final report altogether and consider only the protest complaint and the sworn statement of the witnesses recorded in that enquiry._ _17. The well settled legal propositions can be summed up as follows:_ _(1) When a final report is made by an officer of the Police Station under sub-s.(2) of S.173 of Code of Criminal Procedure, if the Magistrate is not inclined to take cognizance of the offence and issue process, notice must be issued to the complainant/first informant and opportunity is to be granted to him to make his submissions to persuade the Magistrate to take cognizance of the offence and issue process._ _(2) The Magistrate is not bound by the opinion of the investigating officer. He can disregard the report and take the view that there is sufficient ground for proceeding further and take cognizance of the offence and issue process. If the Magistrate decides to disregard the report and take cognizance of the offence and issue process to the accused, it is not mandatory to issue notice to the complainant. Notice is mandatory if the Magistrate is inclined to accept the report._ _(3) Magistrate can direct further investigation under sub-s.(3) of S.156._ _(4) Magistrate can take cognizance on the final report itself under S.190(1)(b) disregarding the opinion of the police and issue summons._ _(5) Magistrate can take cognizance on the original complaint, where investigation under sub-s.(3) of S.156 was earlier ordered and record the statement of the complainant and the witnesses as provided under S.200 and can conduct an inquiry, In that inquiry Magistrate can direct investigation by a police officer or such other officer as provided under S.202 and based on the report and all these materials decide whether cognizance of the offence is to be taken and process is to be issued._ _(6) If the Magistrate accepts the report and drop the proceedings after granting opportunity to the complainant, though complainant can thereafter file a second complaint it will lie only if there was a manifest error or manifest miscarriage of justice in the previous order or there is any exceptional circumstances like new facts which the complainant had no knowledge of or with due diligence could not have brought forward in the previous proceedings.”_ ## 6. In the instant case, the incident is said to have happened after the 2[nd] respondent was suspended from the service by the Crl.M.C No. 4888 of 2016 7 Canara Bank Management and it appears that she had locked the draws of her official table and in spite of the repeated requests by the superior officers, she had refused to hand over the keys, which constrained the bank officials (petitioners) to break open the same. The police has already conducted exhaustive investigation and has submitted Anx.VI refer report stating that the allegations are on the basis of false complaint. 7. In the instant case, it cannot be said that if any manifest error or manifest miscarriage of justice has taken place in the submission of Anx.VI refer report or that new facts have been discovered in Anx.VIII protest complaint, which despite due diligence was not with the knowledge of the 2[nd] respondent at the time of the earlier proceedings. In other words, the impugned decision rendered by the learned Magistrate in having taken cognizance of the offences alleged in the protest complaint at Anx.VIII is illegal and ultra vires and its continuance would amount to nothing but an abuse of the process of court and therefore the matter would require interdiction at the hands of the court in exercise of the inherent extra ordinary powers of this Court saved and preserved in terms of Sec.482 of Cr.PC. Crl.M.C No. 4888 of 2016 8 8. In that view of the matter, it is ordered that the impugned Anx.VIII protest complaint filed by the 2[nd] respondent in this case, which has also led to the institution and pendency of Calendar Case C.C No.518/2016 on the file of the Judicial First Class Magistrate Court-I, Kozhikode, to the limited extent it is directed as against the petitioners herein (A1 to A3) will stand quashed and set aside. If the abovesaid impugned procedure at Anx.VIII are pending as against any accused persons other than the petitioners herein (A1 to A3), then the proceedings may go on in accordance with law, etc 9. The petitioners will produce certified copies of this order before the Investigating Officer concerned as well as before the Judicial First Class Magistrate Court-I, Kozhikode who is dealing with C.C No.518/2016 for necessary information. With these observations and directions, the above Criminal Miscellaneous Case will stand disposed of. **Sd/ALEXANDER THOMAS, JUDGE** KAS Crl.M.C No. 4888 of 2016 9 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** ## **ANNEXURE I** **TRUE COPY OF THE LETTER DATED 16.11.2011 FROM THE ASSISTANT GENERAL MANAGER, CALICUT CIRCLE OFFICE ADDRESSED TO THE 2ND RESPONDENT.** ## **ANNEXURE II** **TRUE COPY OF THE LETTER DATED 3.1.2012 ISSUED BY THE 2ND RESPONDENT.** **ANNEXURE III** **TRUE COPY OF THE LETTER DTD.30.1.2012 ISSUED BY THE 2ND RESPONDENT.** - **ANNEXURE IV** **TRUE COPY OF THE LETTER DATED 23.2.2012 ISSUED BY THE 2ND RESPONDENT.** - **ANNEXURE V CERTIFIED COPY OF THE COMPLAINT DATED 15.3.2012 FILED BY THE 2ND RESPONDENT BEFORE THE CHIEF JUDICIAL MAGISTRATE COURT, KOZHIKODE AGAINST PETITIONERS 1 TO 3 AND OTHERS.** **ANNEXURE VI CERTIFIED COPY OF THE FINAL REPORT DATED 20.7.2012.** **ANNEXURE VII TRUE COPY OF THE ORDER DATED 11.2.2014 IN CRL.M.C NO.3355/2012 PASSED BY THIS HON'BLE COURT.** **ANNEXURE VIII CERTIFIED COPY OF THE COMPLAINT DATED 2.11.2012 FILED BY THE 2ND RESPONDENT.** **RESPONDENT'S/S EXHIBITS: NIL**