Crl.M.C. No. 3516 of 2012

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **WEDNESDAY, THE 21ST DAY OF AUGUST 2013/30TH SRAVANA, 1935** ## **Crl.MC.No. 3516 of 2012 ()** ## **--------------------------CP.NO. 48/2012 OF JUDICIAL FIRST CLASS MAGISTRATE COURT -I,THAMARASSERY** **-------------------------------------------** ## **PETITIONER(S)/ACCUSED 2,3 & 4:** **--------------------------------------------------** **1. MUHAMMED,AGED 65 YEARS, KUNHUKULAM HOUSE, 24TH MILE, PUDUPPADI, KOZHIKODE DISTRICT.** ## **2. KUNHAYAMU, AGED 40 YEARS,** **S/O. MUHAMMED, MUTHUPADAN, VELUPPANKULAM, KOZHIKODE.** ## **3. HYDROSE, AGED 45 YEARS,** **S/O.MUHAMMED, KAKKADAN HOUSE, POOLODE, PUDUPPADI, KOZHIKODE.** ## **BY ADV. SRI.K.A.SALIL NARAYANAN** ## **RESPONDENTS/COMPLAINANT & STATE :** **-----------------------------------------------------------** ## **1. STATE OF KERALA,** **REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.** ## **2. SUBINA, D/O. ASSAINAR,AGED 22 YEARS,** **NANGERUKANDIPOYIL, KINALUR, BALUSSERY-673 612.** **R1 BY PUBLIC PROSECUTOR SRI. DHANESH MATHEW MANJOORAN R2 BY ADV. SRI.LUIZ GODWIN D'COUTH** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 21-08-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **sts** **CRMC.NO.3516/2012** **APPENDIX** ## **PETITIONER(S) ANNEXURES:** **ANNEX 1 : COPY OF THE COMPLAINT PREFERRED BY THE 1ST PETITIONER BEFORE THE SUB INSPECTOR OF POLICE, THAMARASSERY POLICE STATION. ANNEX 2 : COPY OF THE CHARGE SUBMITTED BY THE THAMARASSERY POLICE ON THE COMPLAINT PREFERRED BY THE 2ND RESPONDENT. ANNEX 3 : COPY OF THE COMPLAINT PREFERRED BY THE 2ND RESPONDENT ON 20TH OF JULY, 2012. ANNEX 4 : FINAL REPORT FILED BY THE POLICE BASED ON ANNEXURE-3 COMPLAINT. ANNEX 5 : COMPLAINT PREFERRED BY THE 2ND RESPONDENT DTD.28.9.2012. ANNEX 6 : COPY OF THE SWORN STATEMENT OF THE 2ND RESPONDENT. ANNEX 7 : COPY OF THE SWORN STATEMENT OF CW-2. ANNEX 8 : COPY OF THE SWORN STATEMENT OF CW-3. ANNEX 9 : COPY OF THE ORDER IN CP 48/12 OF JFCM-I, THAMARASSERY. (ORDER CHALLENGED).** ## **RESPONDENTS' ANNEXURES: NIL** ## **/TRUE COPY/** ## **P.A.TO.JUDGE** **sts** ## **P.BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - Crl.M.C. No. 3516 of 2012 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 21[st] day of August, 2013 ## **O R D E R** This is a petition filed under Section 482 of Cr.P.C. seeking to have Annexure-9 quashed. 2. Petitioners are accused Nos. 2, 3 and 4 in C.P.48/2012 of the JFCM-I, Thamarassery. Petitioners are the in laws of the defacto complainant. She is married to Abdul Karim, who is none other than the youngest son of the first petitioner and their marriage was solemnized on 30.03.2008. After marriage, the defacto complainant stayed in the matrimonial home. 3. Shorn of unnecessary details, difference of opinion arouse between the in laws and the defacto complainant. It took such a turn that the first petitioner was driven to the necessity of filing a Police complaint and which was retaliated by the daughter-in-law by filing Annexure-10, private complaint. That complaint was referred for Crl.M.C. No. 3516 of 2012 **-2-** investigation under Section 156(3) of Cr.P.C. and after investigation, the police found that the offences under Sections 376 and 511 of 376 were not made out but instead the offences under Sections 341, 323, 406 and 498A of IPC were made out. So, a final report was made to that effect. 4. It appears that the defacto complaint thereafter filed a private complaint alleging offences under Sections 406 and 498(A) of IPC. That was also referred for investigation under Section 156(3) of Cr.P.C. The Police filed a refer report pointing out that both the offences have already been incorporated as a result of the investigation in the earlier complaint and therefore, there was no necessity to file a charge in the said case. Thereafter, the defacto complainant filed Annexure-5 complaint which was a reproduction of the first complaint which was referred for investigation under Section 156(3) of Cr.P.C. and which resulted in a final report incorporating offences under Sections 341, 323, 406, 498(A) etc. The learned Magistrate Crl.M.C. No. 3516 of 2012 **-3-** after following the procedure under Sections 200 to 203 of Cr.P.C. felt that there was prima facie case and issued summons to the accused concerned as per Annexure-9 order. It is the said order that is assailed in this proceedings. 5. A short case put forwarded by the petitioner is that it was without adverting the materials which led to the filing of the report in the first complaint which is substantially on the same term as Annexure-5 complaint that summon has issued on Annexure-5 complaint. The Police had filed a report wherein it was pointed out that the offences under Sections 511 of 376 and 377 were not made out and on a subsequent complaint, the learned Magistrate has taken cognizance. Relying on the decision reported in **Parameswaran Nair** v. **Surendran and Another** [2009 (1) KHC 801], the learned counsel for the petitioners contended that while a protest complaint may be maintainable and it may be possible for the learned Crl.M.C. No. 3516 of 2012 **-4-** Magistrate to take cognizance on the protest complaint, it is necessary for the learned Magistrate to advert to the materials which led to the necessity to file a protest complaint as against those offences which are not shown in the final report filed by the Police. In the case on hand, that exercise has not been undertaken and the learned Magistrate without adverting to the final report in the first complaint which initially alleged the offences under Sections 511 of 376 and 377 of IPC that the present proceedings have been initiated in Annexure-9 order. It is therefore contended that the said order is unsustainable. 6. The learned counsel appearing for the respondents on the other hand pointed out that even in the first complaint filed, there were allegations of commission of offences under Sections 511 of 376 and 377 of IPC. For the reasons best known to the Investigating Officer, he deliberately omitted to include those offences in the final report filed by him and that necessitated the filing of Crl.M.C. No. 3516 of 2012 **-5-** Annexure-5 complaint as a protest to the deletion of Sections 511 of 376 and 377 by the Investigating Officer. The learned counsel went on to point out that a protest complaint is in fact an objection to the so called refer report and may not specifically fall within the category of the second complaint. At any rate, according to the learned counsel, nothing precludes the learned Magistrate from taking cognizance on a protest complaint following the procedure under Sections 200 to 204 of Cr.P.C. That is precisely what has been done in the case on hand and there are no grounds to interfere with the order. 7. Strictly speaking, the Code does not envisage a protest complaint at all. It is a creation of judicial precedents. It is the settled law to the effect that when a refer report is filed before court after investigation, notice has to go to the defacto complainant who is entitled to take objection to the refer report. It is also settled that merely because a refer report is filed, the original complaint does Crl.M.C. No. 3516 of 2012 **-6-** not get merged and it continues to exist. When a protest complaint filed, it is not a fresh complaint but it is only an objection to the refer report and only an extension of the original complaint. In the light of the fact that even a second complaint is maintainable under exceptional circumstances, it could not be said that the protest complaint is not maintainable. 8. It is also well settled by now that the learned Magistrate can take cognizance on the protest complaint and proceed under Sections 200 to 204 of Cr.P.C. 9. In the decision reported in **Parameswaran Nair** v. **Surendran and Another** [2009 (1) KHC 801], this aspect was considered in detail. This Court had occasion to consider when and how further proceedings can be taken on a protest complaint. This Court, after referring to various decisions, held as follows: “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 Crl.M.C. No. 3516 of 2012 **-7-** 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. The Magistrate cannot therefore ignore the final report altogether and consider only the protest complaint and the sworn statement of the witnesses record in that enquiry. Then the Magistrate issue notice to the complainant on receipt of the final report and grants opportunity to the complainant to show why cognizance of the offence is to be taken and the complainant files a protest complaint, it is to be treated only as his objections to the final report, stating his reasons why the report cannot be accepted. If the Magistrate records his statement and that of the witnesses and decides to take cognizance of the offence, after considering all the materials including the final report made by the Police under sub-section 2 of S.173, it is advisable for the Magistrate to record that the final report is not accepted and on the entire materials he is of the opinion that there is ground to proceed and issue summons under S.204 of Code of Criminal Procedure. But the fact that no specific order was recorded that final report is not accepted or fact that the decision to take cognizance of the offence and issue process was recorded in the protest complaint, by themselves are not fatal, if the records show that Magistrate has considered all the relevant materials and applied its mind. If after complying these procedures, an order not to take cognizance is passed by the Magistrate, then a second complaint will lie, only if there was any manifest error or manifest miscarriage of justice in the previous order or the complainant relies on new facts or materials which was not to his knowledge or with reasonable diligence could not have brought forward in the previous proceedings. The order passed by the learned Magistrate is to be considered in the light of the aforesaid principles. The order is blank on whether the decision to take cognizance and issue summons was taken on the materials available in the final report made under S.173(2) or on the materials made available by the complainant in the inquiry under S.200. The order makes it clear that the learned Magistrate has not considered the question on the proper perspective. In Crl.M.C. No. 3516 of 2012 **-8-** such circumstances, the order can only be set aside and the matter remanded for fresh consideration in accordance with law.” 10. It follows from the above decision that while taking cognizance on a protest complaint, the learned Magistrate will have to necessarily apply his mind to the materials which led to the filing of a refer report to the Investigating Officer and will have to consider the same before issuing process following the procedure under Sections 200 to 204 of Cr.P.C. in a protest complaint. The court went on to hold that the order issuing summons should reflect by application of mind to the materials which led to the refer report. In the reported decision, since that was not reflected in the order of Magistrate who are taken cognizance on a protest complaint, the order was set aside and the matter was remanded for fresh consideration. 11. If the said principle is to apply and there is no reason as to why it should not the case on hand also falls within the ambit of the above decision. There is nothing in Crl.M.C. No. 3516 of 2012 **-9-** Annexure-9 order to show that the learned Magistrate had taken note of the materials which had persuaded the Investigating Officer to delete Sections 511 of 376 and 377 of IPC from the final report which he filed on the basis of investigation conducted by him on a private complaint filed by the defacto complainant. It may be noticed here that Annexure-5 is almost a replica of the first complaint filed by the defacto complainant. In the light of the decision referred to above, the order has necessarily to set aside. In the result, this petition is allowed. Annexure-9 order is set aside and the matter is remanded to the learned Magistrate to dispose of the case in accordance with law following the principles laid down in the decision referred to above. The learned Magistrate will make every endeavour for a speedy disposal of the case. ## **P.BHAVADASAN JUDGE** ds