CRL.M.C. No. 8998 of 2019

# IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. TUESDAY, THE 4[TH] DAY OF JANUARY 2022 / 14TH POUSHA, 1943 CRL.MC NO. 8998 OF 2019 [CRIME NO.2623/2015 OF Kayamkulam Police Station, Alappuzha] [AGAINST THE ORDER DATED 2.11.2019 IN C.P.NO.61/2019 IN CMP NO.8667/2017 OF THE COURT OF JUDICIAL FIRST CLASS MAGISTRATE-I, KAYAMKULAM] ## PETITIONERS/ACCUSED NOS. 5 TO 7: 1 RANIMOL, AGED 40 YEARS W/O SANTHOSH,SANTHOSH VIHAR (POOVAKKATT VEEDU), KEERIKKAD SOUTH, KEERIKKAD. 2 DEVAKI, AGED 67 YEARS W/O SUDHAKARAN, ,SANTHOSH VIHAR (POOVAKKATT VEEDU), KEERIKKAD SOUTH, KEERIKKAD. 3 REMYA, AGED 36 YEARS W/O RAJAN BABU, RAJ VIHAR (POOVAKKATT VEEDU), KEERIKKAD SOUTH, KEERIKKAD. BY ADVS. GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SRI.P.J.JOE PAUL SRI.MANU SRINATH SRI.RAJAN G. GEORGE ## RESPONDENTS/STATE AND COMPLAINANT: 1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031. 2 K.SASI, AGED 59 YEARS S/O KUNJU PANICKER, KAIRALI VEEDU, KEERIKKAD SOUTH, KEERIKKAD, ALAPPUZHA DISTRICT, PIN - 690 502. Crl.M.C.No. 8998 of 2019 2 BY ADV SRI.P.R.HARIKUMAR FOR R2 BY ADV. MAYA M.N. PUBLIC PROSECUTOR FOR R1 THIS CRIMINAL MISC. CASE HAVING BEING FINALLY HEARD ON 07.12.2021, THE COURT ON 4.1.2022 PASSED THE FOLLOWING: Crl.M.C.No. 8998 of 2019 3 ## O R D E R The petitioners herein are the accused Nos.5 to 7 in C.P.No.61/2019 on the file of the Judicial First Class Magistrate Court-I, Kayamkulam. The aforesaid committal proceedings is on the basis of a private complaint submitted by the 2[nd] respondent herein which was numbered as C.M.P.No.8668/2017 against 7 persons including the petitioners herein for the offences punishable under Sections 143,147,148,149,324,308,341,506(ii) of the Indian Penal Code (IPC). 2. The facts leading to this case are as follows: Earlier, on the basis of a complaint submitted by the 2[nd] respondent, the Sub Inspector of Police, Kayamkulam has registered F.I.R. No.2628/2015 against the petitioners herein alleging offences under Sections 143, 147, 149, 323, 324, and 447 of the IPC. The allegation against the petitioners and Crl.M.C.No. 8998 of 2019 4 other accused was that, on 31.7.2015 at 19.30 hours, the petitioners, their husbands along with one Dileep and Sangeetha came to the southern courtyard of the shop of the de facto complainant. The said Dileep pushed the defacto complainant and the 2[nd] accused beat him with an iron rod on his forehead and shoulders. The allegations against the petitioners herein was that they had hit him. The motive of the said assault was stated to be to evict the de facto complainant from the property which he had purchased from one Sudhakaran, who is the brother of the 5[th] accused. 3. In connection with the very same incident, Crime No.2623/2015 was also registered by the Kayamkulam Police arraying the 2[nd] respondent herein, his wife and two sons as accused, alleging commission of offences punishable under Sections 294(B), 323, 324, 452, 308 r/w. Section 34 of the IPC. The aforesaid crime was registered on the basis of information submitted by the said Dileep Crl.M.C.No. 8998 of 2019 5 who is the 1[st] accused in Crime No.2628 of 2015. The allegation in Crime No 2623/2015 was that the 2[nd] respondent along with the other accused persons trespassed into the house of one Sasidharan and hit the de facto complainant therein on his head with an iron rod and thereby caused injury to his head. 4. In Crime No.2628/2015 which was registered against the petitioners herein, the police had conducted an investigation and submitted Annexure - 3 final report. In the aforesaid final report, the petitioners herein was not arrayed as accused persons and the accusation therein was in respect of accused Nos. 1 to 4 named in the F.I.R. The offences alleged in the aforesaid crime was under Sections 447, 323, 324 r/w. Section 34 of the IPC. 5. In respect of F.I.R.No.2623/2015 wherein the 2[nd] respondent was the accused, the police submitted a final report after completing the investigation alleging offences punishable under Crl.M.C.No. 8998 of 2019 6 Sections 323,324,452,308 r/w. Section 34 of (IPC) which is now pending trial. 6. Even though Annexure -3 final report was submitted in the year, 2015, the 2[nd] respondent submitted C.M.P.No.8668/2017 (Annexure -6) on 19.12.2017 against seven accused persons including the accused persons arraigned as accused Nos.1 to 4 in the final report in Crime No 2628/2015, The petitioners herein are accused Nos.5 to 7, therein. The said private complaint was submitted by the 2[nd] respondent in respect of the very same incident wherein it was pointed out that, the police failed to conduct a proper investigation in the matter and the offences charged by the police were that of lesser gravity. It was also stated therein that, the petitioners herein were excluded by the police while submitting Annexure-3 final report in Crime No.2628/2015. It is to be noted that, cognizance on Annexure-3 final report has been taken by the Crl.M.C.No. 8998 of 2019 7 learned Magistrate and the same is now pending as C.C.No.295/2016. 7. During the course of trial of C.C.No.295/2016, the pendency of Annexure -6 private complaint came to the notice of the learned Magistrate. Accordingly it was ordered that in order to inquire into the said complaint and to conduct a trial in compliance of Section 210 of the Cr.PC., the Calendar Case was adjourned. The complainant in the private complaint who is the 2[nd] respondent herein was directed to be present for the purpose of inquiry under Section 202 of the Cr.PC. Accordingly, an inquiry as mentioned above was conducted during which, the 2[nd] respondent and 4 other witnesses were examined. After considering the aforesaid complaint, statements of witnesses and the documents produced, the learned Magistrate as per order dated 2.11.2019 issued summons to accused Nos. 1 to 7, by numbering the same as C.P. No.61/2019. The committal proceeding was initiated Crl.M.C.No. 8998 of 2019 8 by the learned Magistrate in view of the fact that, the learned Magistrate found that there are ingredients to attract the offence under Section 308 of the IPC which is an offence triable by a Sessions Court. Even though the police report submitted in connection with the said incident contained only four accused, in the committal proceedings, the petitioners were also implicated as accused persons. The petitioners herein are challenging the aforesaid order of issuing summons to the accused persons. 8. Heard Sri. George Varghese Perumpallikuttiyil, the learned counsel for the petitioners, Smt.Maya M.N., the learned Public Prosecutor for the 1[st] respondent and Sri.P.R.Harikumar, the learned counsel for the 2[nd] respondent. 9. The learned counsel for the petitioners contends that the order passed by the learned Magistrate to issue summons to the petitioners Crl.M.C.No. 8998 of 2019 9 herein and also to incorporate the offence under Section 308 of the IPC which were not there in the final report submitted by the police are not legally sustainable. According to him, the police had conducted a detailed investigation in the matter and found that there are only four accused persons in the alleged incident and the offences alleged against them are under Sections 447, 323, 324 r/w. Section 34 of the IPC alone. The learned counsel further contends that, unless the 2[nd] respondent is able to show that there were any manifest error or manifest miscarriage of justice in the investigation conducted by the police, the learned Magistrate could not have entertained a private complaint. According to him, the order passed by the learned Magistrate on 2.11.2019 (Annexure-13) is without proper application of mind and also the same is not at all a speaking order. The Crl.M.C.No. 8998 of 2019 10 judgment rendered by this Court in Parameswaran Nair v. Surenderan [2009(1)KLT 794] was relied upon by the learned counsel in this regard. 10. The learned Public Prosecutor as well as the learned counsel for the 2[nd] respondent seriously oppose the aforesaid contentions. 11. The learned counsel for the 2[nd] respondent contends that, the police failed to conduct a proper investigation in the matter and had omitted to incorporate proper offences in the final report even though there were materials to establish the offence under Section 308 of IPC. The learned counsel brought my attention to the wound certificate of the de facto complainant wherein he had sustained head injury, namely, lacerated wound on scalp (4x1cm). The history of the alleged cause of injury is noted in wound certificate as “five persons trespassed into the house and attacked Crl.M.C.No. 8998 of 2019 11 him with an iron rod”. It was also pointed out that, consequent to the injuries, he had undergone treatment for five days as inpatient in the hospital. He also pointed out that, the incident in Crime No.2623/2015 wherein the 2[nd] respondent was an accused, has occurred at 8 p.m. on 31.7.2015 but on the other hand, the incident in Crime No.2628/2015 has taken place at 7.30 p.m. However, the police had registered the F.I.R. against the 2[nd] respondent herein initially and only thereafter the F.I.R. was registered on the complaint submitted by the 2[nd] respondent herein. It is also contended by the learned counsel for the 2[nd] respondent that the learned Magistrate has passed an order to issue summons after being convinced of the materials attracting the offence under Section 308 of the IPC and also the involvement of the petitioners herein. While passing such an order, it was not Crl.M.C.No. 8998 of 2019 12 obligatory on the part of the learned Magistrate to pass a detailed order. If sufficient indications are there to show that the said order was passed after examining the entire materials available on record, no interference thereon can be made by invoking powers under Section 482 of the Cr.PC. 12. The only question that arises is as to whether Annexure-13 order passed by the learned Magistrate wherein summons issued to the accused Nos. 1 to 7 is proper or not. In Parameswaran Nair ’s case (supra), this Court observed in detail with regard to the procedure to be adopted when a subsequent complaint is submitted after the submission of the final report. The relevant paragraphs of the said decision are ## extracted hereunder: _“15. In practice when a complainant receives a notice from the Magistrate intimating the submission of a final report by the Police to the effect that no offence is made out, informing that the report is being considered by the Magistrate, he files a_ Crl.M.C.No. 8998 of 2019 13 _complaint which in common usage is termed protest complaint. So long as cognizance was not taken on the first complaint and only an order for investigation under S.156(3) at pre cognizance stage was ordered, the complaint is not effaced from the file. Hence the Magistrate at the stage of considering the final report under S.173(2) is entitled to take cognizance of the offence on the materials furnished by the Police under S.190(1)(b) rejecting the opinion of the Police or is entitled to take cognizance under S.190(1)(a) on the original complaint after recording the statement of the complainant and his witnesses as provided under S.200 or even direct investigation under S.202 and conduct an inquiry and decide whether on all these materials whether process is to be issued under S.204. The protest complaint if any filed at that stage cannot be treated as the second complaint, attracting the limitations of a second complaint. Such a protest complaint can only be treated as an objection to the final report submitted under S.173(2). On filing of such a protest complaint or an objection to the final report, Magistrate is bound to consider the final report with the documents and statements produced and decide whether cognizance is to be taken on the Police report under S.190(1)(b) of the Code. If not Magistrate can record the statement of the complainant and his witnesses and even can direct an investigation under S.202 and based on the inquiry decide whether process is to be issued under S.204 or complaint is to be dismissed under S.203._ _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 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._ _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 S.173 of Code of Criminal Procedure, if the Magistrate is_ Crl.M.C.No. 8998 of 2019 14 _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-section 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-section 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_ Crl.M.C.No. 8998 of 2019 15 _due diligence could not have brought forward in the previous proceedings._ _18. When 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 his 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.”_ **==> picture [428 x 14] intentionally omitted <==** complaint/second complaint submitted after **==> picture [464 x 14] intentionally omitted <==** entertained when a manifest error or manifest miscarriage of justice in the investigation conducted by the police is highlighted. In this Crl.M.C.No. 8998 of 2019 16 case, the 2[nd] respondent in Annexure-6 has clearly mentioned about a biased investigation conducted by the police due to the influence of a political leader. Even though the said allegation by itself is not sufficient to entertain the said application, the facts and other materials available on record are to be carefully scrutinized for examining whether there is any such error or miscarriage of justice. In this case, it is evident from the wound certificate which forms part of Annexure-3 final report that the de facto complainant has sustained injury on his scalp and the history of the same was stated to be on account of the assault by an iron rod. Since, it is an attack on the head of the 2[nd] respondent with a dangerous weapon such as iron rod, the same can be a reason for attracting the offence under Section 308 of the IPC, which was not Crl.M.C.No. 8998 of 2019 17 incorporated in the FIR in Crime No.2628/2015 or in the final report submitted thereon. However, it is to be noted that, in Crime No.2623/2015 which was registered against the 2[nd] respondent herein, the defacto complainant therein is seen to have been sustained similar nature of injuries. In the said case, the police had charge sheeted the defacto complainant herein and other accused persons for various offences including offence under Section 308 IPC. The aforesaid aspect creates a doubt as to the manner of investigation conducted by the police. 14. Apart from the above, in Annexure-1 F.I.R. in Crime No.2628/2015, the 2[nd] respondent specifically named all the accused persons including the petitioners herein as culprits. However, they were seen excluded from the party array while Annexure-3 final report was submitted. On the other hand, while conducting Crl.M.C.No. 8998 of 2019 18 inquiry under Section 202 of the Cr.PC on the basis of Annexure-6 complaint submitted by the 2[nd] respondent herein, all the witnesses including the 2[nd] respondent and 4 other witnesses have clearly mentioned about the role of the accused persons herein. In such circumstances, it cannot be concluded that, the act of issuing summons to all the accused persons by the learned Magistrate is erroneous. It is true that, the order passed by the learned Magistrate is not a speaking order. However, the said order clearly refers to the wound certificate as well as the statements of witnesses recorded during the course of inquiry. In such circumstances, I have no reason to assume that the learned Magistrate has not applied his mind while taking such a decision. As contended by the learned counsel for the 2[nd] respondent, while issuing summons to the accused ## Crl.M.C.No. 8998 of 2019 19 persons, it is not mandatory for the learned Magistrate to pass a very detailed order (it would be be more appropriate to do so) to establish that there was proper application of mind while issuing such an order. Here in this case, I am convinced that the learned Magistrate has applied his mind and arrived at a conclusion as to the necessity for issuing summons to the accused persons for the offences alleged in Annexure-6 complaint. Since the veracity of the allegations contained therein is a matter of evidence, I am of the view that this is not a fit case in which the powers of this Court under Section 482 of the Cr.PC is to be invoked. In such circumstances, I do not find any merit in this Crl.M.C and accordingly it is dismissed. Sd/- ZIYAD RAHMAN A.A.,JUDGE pkk Crl.M.C.No. 8998 of 2019 20 ## APPENDIX OF CRL.MC 8998/2019 ||APPENDIX OF CRL.MC 8998/2019| |---|---| |PETITIONER’S|ANNEXURES:| |ANNEXURE 1|A TRUE COPY OF FIRST INFORMATION REPORT IN| ||CRIME NO. 2628/15 OF KAYAMKULAM POLICE| ||STATION.| |ANNEXURE 2|A TRUE COPY OF FINAL REPORT DATED 05-12-| ||2015 IN FIR NO. 2623/15 OF KAYAMKULAM| ||POLICE STATION.| |ANNEXURE 3|A TRUE COPY OF FINAL REPORT IN CRIME NO.| ||2628/15 OF KAYAMKULAM POLICE STATION.| |ANNEXURE 4|A TRUE COPY OF APPLICATION ALONG WITH| ||DISCHARGE/REFERENCE CARD ISSUED TO THE 2ND| ||RESPONDENT (DEFACTO COMPLAINANT).| |ANNEXURE 5|A TRUE COPY OF DEPOSITION OF THE DEFACTO| ||COMPLAINANT (CW1) AS PW1.| |ANNEXURE 6|A TRUE COPY OF CMP NO. 8668/17 DATED 19-12-| ||2017.| |ANNEXURE 7|A TRUE COPY OF EVIDENCE OF THE 2ND| ||RESPONDENT /DEFACTO COMPLAINANT DATED 23-| ||05-2012.| |ANNEXURE 8|A TRUE COPY OF EVIDENCE OF WITNESS NO.2| ||EXAMINED IN CMP NO. 8668/17.| |ANNEXURE 9|A TRUE COPY OF EVIDENCE OF WITNESS NO.3| ||EXAMINED IN CMP NO. 8668/17.| |ANNEXURE 10|A TRUE COPY OF EVIDENCE OF WITNESS NO.4| ||EXAMINED IN CMP NO. 8668/17.| |ANNEXURE 11|A TRUE COPY OF EVIDENCE OF WITNESS NO.5| ||EXAMINED IN CMP NO. 8668/17.| |ANNEXURE 12|A COPY OF PROCEEDINGS IN C.P. NO. 61/19.| |ANNEXURE 13|A COPY OF ORDER DATED 02-11-2019 TAKING| ||COGNIZANCE OF C.P. 61/2019.|