Crl.M.C. No. 5458 of 2013

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **MONDAY, THE 27[TH] DAY OF JUNE 2022 / 6TH ASHADHA, 1944** **CRL.MC NO. 5458 OF 2013** **C.P NO.73/2012 ON THE FILE OF JUDICIAL FIRST CLASS MAGISTRATE COURT,** ## **PAYYANNUR** ## **PETITIONERS/ACCUSED:** 1 YASODHA KAKKATT, AGED 62 YEARS W/O. KAKKATT DAMODHARAN, PONNACHERRY, PARAVOOR, PANAPUZHA P.O., M.M.BAZAR, KANNUR TALUK. 2 KAKKATT PUSHPAVALLY, AGED 42 YEARS D/O.KAKKATT DAMODHARAN, PONNACHERRY, PARAVOOR, PANAPUZHA P O, M M BAZAR, KANNUR TALUK 3 MATTUMMAL SREEJITH, AGED 23 YEARS S/O.KAKKATT PUSHPAVALLY, POLICE CONSTABLE,PONNACHERRY, PARAVOOR, PANAPUZHA P O, M M BAZAR, KANNUR TALUK, 4 KAKKATT SREEJA,W/O.THAIVALAPPIL SURESH,PONNACHERRY, PARAVOOR, PANAPUZHA P O, M M BAZAR, KANNUR TALUK 5 THAIVALAPPIL SURESH, AGED 40 YEARS S/O.LATE RAMAN, PONNACHERRY, PARAVOOR, PANAPUZHA P O, M M BAZAR, KANNUR TALUK BY ADVS. SRI.M.SASINDRAN SRI.A.ARUNKUMAR SRI.P.S.BINU ## **RESPONDENTS/COMPLAINANT & STATE:** 1 SHEEMA.R., AGED 35 YEARS W/O.KAKKAD SREEDHARAN, PONNACHERRY, PARAVOOR, PANAPUZHA P O - 670306, M M BAZAR, KANNUR TALUK, KANNUR DISTRICT 2 STATE OF KERALA REP BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682013 BY ADVS. SRI.ZUBAIR PULIKKOOL -R1 BY ADV.SMT.SNINYMOL V.O.- PUBLIC PROSECUTOR ## **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 27.06.2022,** ## **THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C. No. 5458 of 2013 2 ## **ORDER** Dated this the 27[th] day of June, 2021 This Crl.M.C has been filed seeking to quash Annexure 4 complaint and further proceedings in C.P. No.73/2012 on the file of Judicial First Class Magistrate Court, Payyannur, Kannur. 2. Petitioners are the accused persons in C.P. No.73/2012 for the offence punishable under Sections 498A, 323, 324, 326, 307, 506 (i), 294(b) r/w Section 34 of Indian Penal Code. 3. The case against them has been taken on file upon a protest complaint filed by the 1[st] respondent who is none other than the daughter in law of the 1[st] petitioner. The 1[st] respondent filed C.M.P. No.1882/2012 before the Judicial First Class Magistrate Court, Payyannur, against the in-laws, the petitioners herein alleging the commission of offence under Sections 498-A, 323, 324, 326, 307, 506 (i), 294(b) r/w Section 34 of IPC. 4. The marriage between the 1[st] respondent and the son of the 1[st] petitioner was solemnised on 08.11.1996. They have Crl.M.C. No. 5458 of 2013 3 been residing together in the house of the petitioners, parental house of the husband of the 1[st] respondent. 5. It is alleged that the petitioners have attempted to kill her by giving poison and she was denied food **.** On 09.4.2012 at 5 p.m., the petitioners attacked her using sword, stick, iron rode, knife etc. and the 3[rd] petitioner had beaten her on the head using the iron rode and she was admitted in Payyannur Government Hospital. 6. The complaint was forwarded under Section 153(3) Cr.P.C. to Payyannur Police Station and a crime was registered. Annexure A1 is the FIR in Crime No.477/2012 of Payyannur Police Station. Thereafter, on conducting a detailed investigation, final report was filed treating the case as false. True copy of the final report is produced and marked as Annexure-AII. AnnexureAIII is the copy of the R.C. notice. 7. Dissatisfied with the report, the 1[st] respondent filed Annexure AIV, protest complaint. She has made only vague allegations in the complaint. The Magistrate on conducting enquiry taken the case on file as C.P. No.73/12 without properly evaluating the facts and circumstances and law involved. Crl.M.C. No. 5458 of 2013 4 8. So, the petitioners approached this Court to quash for all the proceedings in C.P. No.73/2012, since, it was taken on file disregarding the well settled principles of law. 9. Notice was issued to the respondents. Though notice was duly served to 1[st] respondent, there is no appearance. 2[nd] respondent appeared through the Public Prosecutor. Heard both sides. 10. The main contention of the learned counsel for the petitioners is that the learned Magistrate has taken the case on file as C.P. No.73/2012 without appreciating the facts and circumstance and law involved. He would contend that the final report filed by the Investigating Officer has not been evaluated or analysed and a cryptic order has been passed while taking the case and issuing summons to the petitioners. 11. In **Parameswaran Nair v. Surendran and Anr. [2009 1 KLT 794 : ILR 2009 1 Kerala 831 : 2009 1 KHC 801],** the question arose as to whether a Magistrate is competent to take cognizance of a protest complaint filed by a complainant on receipt of the notice on a refer report submitted by the police officer after investigation under Section 173(2) of Crl.M.C. No. 5458 of 2013 5 Code of Criminal Procedure, 1973 (in short the code), ignoring the refer report and without considering the question whether the refer report is to be accepted or not? The proper procedure to be adopted by a Magistrate on receipt of a refer report is also to be discussed in that case. 12. Para Nos.11 and 12 are apposite to be quoted in this context which reads thus: _11. When a final report is made under Sub Section 2 of Section 173 of the Code, after investigation pursuant to an order under Sub Section 3 of Section 156 of the Code by the Magistrate, that no offence is committed and that report is accepted by the Magistrate after notice to the complainant and drop the proceedings the legal effect could only be that the original complaint, based on which investigation was ordered under Sub Section 3 of Section 156, which is not effaced from the record is deemed to be dismissed._ _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 Section 173(2) of the Code. Magistrate is bound to consider the final report_ Crl.M.C. No. 5458 of 2013 6 _and decide which of the options available to him is to be exercised._ 13. In para 17 is also to be quoted and which reads thus: ## _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 Section 2 of section 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 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 section 3 of Section 156._ _(4) Magistrate can take cognizance on the final report itself under Section 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 Section 3 of Section 156 was earlier ordered and record the_ Crl.M.C. No. 5458 of 2013 7 _statement of the complainant and the witnesses as provided under Section 200 and can conduct an inquiry. In that inquiry Magistrate can direct investigation by a police officer or such other officer as provided under Section 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._ 14. So, on receiving final report under Section 173(2) to the effect that no offence is made out, the Magistrate has to issue notice to the complainant and should grant an opportunity to the complainant to show cause why the cognizance of the offence is to be taken and if the complainant filed a protest complaint, it is to be treated only as his objection to the final report, stating the 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 that considering all the materials including the final report made by Crl.M.C. No. 5458 of 2013 8 the Police under Sub Section 2 of Section 173, it is advisable for the Magistrate to record that the final report is not accepted and on the entire materials is of the opinion that there is ground to proceed and issue summons under Section 204 of the Code of Criminal Procedure. But the fact that there is no such specific order was recorded by itself is not fatal if the records shows that the Magistrate has considered all the relevant materials and applied his mind. 15. But in the present case, the order by which the Magistrate issued process to the petitioners which reads thus: _Heard perused the facts deposition in the matter prima facie case made out. The file is taken as CP 73/12 U/s 498 (A), 323, 324, 326, 307, 506(1), 294(b) r/w 34 IPC. Issue summons to accused. Return of summons 4.1.13._ 16. On going through the above, there is nothing to infer that the learned Magistrate has gone through the final report filed by the Circle Inspector. 17. The learned counsel for the petitioners would also contend that the 1[st] petitioner is the mother in law of the 1[st] respondent and 1[st] respondent and her son in collusion had filed this complaint only to harass the aged mother and the other in- Crl.M.C. No. 5458 of 2013 9 laws. He would also contend that all the allegations in Annexure AIV protest complaint will not disclose any offence and has no clarity and allegations are raised without specifying date on which the alleged incidents had taken place. 18. The learned counsel would contend that this case is of the year 2012 and already ten years have been elapsed and no useful purpose would be served by remand of the case to the Magistrate Court. 19. The offence under Section 307 IPC has also been incorporated and allegation to attract that offence in the complaint is that on several occasions the petitioners attempted to kill her by dousing her with kerosene and setting her ablaze. But dates are not mentioned. 20. Copies of statements given by the 1[st] respondent and her husband who is none other than the son of the 1[st] petitioner and also a co-worker of the husband of the 1[st] respondent are also produced. 21. Copy of discharge card issued from Government Hospital, Payyannur, dated 12.4.2012 produced would show that though she was examined with alleged history of assault, apart Crl.M.C. No. 5458 of 2013 10 from pain around the neck, no other external injuries are noted. But at the same time the allegation in the complaint is that on 09.4.2012, she was attacked with iron bar, sword stick, knife etc. Discharge card shows her admission from 9.4.2012 to 12.4.2012 at Government Hospital, Payyannur, but no injuries are noted. 22. The statement of the husband is to the effect that on several occasions kerosene has been doused and she has been assaulted with iron bar, stick and knife and she fell unconscious and was taken to hospital. But, at the same time, he did not state about burning her after dousing with kerosene. The other witness only stated that husband of the de facto complainant used to disclose about the affairs of the family to him and he had been to hospital while she was admitted there. He did not state about the overt act of any of the accused. So on an overall evaluation of the statement of the de facto complainant her husband and the other witness as has been rightly contended by the learned counsel for the petitioner, there is no consistent case for them and only general allegations are made against the inlaws. On the other hand, refer report filed by the Circle Inspector which has been produced as Annexure AII would show that Circle Crl.M.C. No. 5458 of 2013 11 Inspector had made a detailed investigation with regard to the complaint made by her and the specific incident alleged to have occurred on 09.04.2012 has also been enquired into and it has been stated that in the statement given on 10.04.2012 at hospital to the police and in the statement given at the office of the Circle Inspector, Payyannur, she had not stated about the assault by the mother-in-law. The neighbours have also not given any such statement. So also the other discrepancies in the statement given by the complainant has also been examined in detail and there is also reference with regard to the statement given by her to the doctor as well as the auto driver etc. Hence, the case was referred as false. 23. On a close scrutiny of the final report filed by the Circle Inspector as well as the statement given by the de facto complainant and the witnesses before the Magistrate it could be safely concluded that there is no manifest error in the refer report filed by the Circle Inspector and no new facts which were not within the knowledge of the de facto complainant could be brought out during the enquiry before the learned Magistrate and there is nothing to infer any miscarriage of justice has been Crl.M.C. No. 5458 of 2013 12 caused to the de facto complainant. The statement given by her before the court which have been discussed earlier also would not give any material prima facie to attract the offence under Sections 498A, 307, 294(b) etc. Moreover the petitioners are none other than the mother-in-law and other in-laws of the defacto complainant. So drawing the petitioners to face a sessions trial with this flimsy materials will be a clear abuse of process of court without serving any useful purpose. [See: **Gorige Pentaiah v. State of A.P. (2008) 12 SCC 531)** and **State of Karnataka v. L. Muniswamy : AIR 1997 SC 1489].** In the result, Crl.M.C. allowed and the entire proceedings against the petitioners in C.P.No.73/2012 on the file of Judicial First Class Magistrate Court, Payyannur is hereby quashed. Sd/- **M.R.ANITHA JUDGE** SMF Crl.M.C. No. 5458 of 2013 13 ## **APPENDIX OF CRL.MC 5458/2013** PETITIONERS' ANNEXURES ANNEXURE A1 A TRUE COPY OF THE FIR IN CRIME NO 477 OF 2012 OF PAYYANNUR POLICE STATION ANNEXURE AII A TRUE COPY OF THE FINAL REPORT IN CRIME NO 477 OF 2012 ANNEXURE AIII A TRUE COPY OF R C NOTICE ANNEXURE AIV A TRUE COPY OF THE COMPLAINT FILED BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, PAYYANNUR UNDER SECTION 190(1)(A)R/W 200 OF CR.PC ANNEXURE AV A TRUE COPY OF OF THE DOCKET SHEET ORDER IN CMP NO 4802 OF 2012 IN CP NO 73 OF 2012 ANNEXURE AVI A TRUE COPY OF THE DISCHARGE SUMMARY PRODUCED BY THE IST RESPONDENT HEREIN BEFORE THE COURT BELOW ALONG WITH ANNEXURE AIV COMPLAINT ANNEXURE AVII A TRUE COPY OF THE COUNTER FILED BY THE PETITIONER IN CMP NO 1880 OF 2012 ## **//TRUE COPY//** **PA TO JUDGE**