Crl.MC.No.1163 of 2016 (E) in CP 6/2016 of Judicial Magistrate of First Class, Nilambur

Crl.MC.No.1163 OF 2016(E) 1 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 15TH DAY OF JANUARY 2021 / 25TH POUSHA, 1942** **Crl.MC.No.1163 OF 2016(E)** **IN CP 6/2016 OF JUDICIAL MAGISTRATE OF FIRST CLASS, NILAMBUR** ## **PETITIONERS/ACCUSED:** - **1 ASHOKAN, AGED 51 YEARS S/O.AYYAPPUNNI, NAVOORIPARAMBATH HOUSE, PULIMUNDA, CHUNGATHARA, MALAPPURAM DISTRICT.** - **2 DIVAKARAN, AGED 43 YEARS S/O.AYYAPPUNNI, NAVOORIPARAMBATH HOUSE, PULIMUNDA, CHUNGATHARA, MALAPPURAM DISTRICT.** - **3 UNNIKRISHNAN, S/O.AYYAPPUNNI AGED 36 YEARS, NAVOORIPARAMBATH HOUSE, PULIMUNDA, CHUNGATHARA, MALAPPURAM DISTRICT.** - **4 VINI, AGED 30 YEARS W/O.UNNIKRISHNAN, NAVOORIPARAMBATH HOUSE, PULIMUNDA, CHUNGATHARA, MALAPPURAM DISTRICT.** **BY ADV. SRI.BABU S. NAIR** ## **RESPONDENTS/STATE:** - **1 THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI - 682 031.** - **2 PADMINI W/O.GOPALAN, MANGATTIRI HOUSE, AKAMPADAM P.O, NILAMBUR, MALAPPURAM DISTRICT, PIN - 679 329.** - **R2 BY ADV. SRI.K.K.DHEERENDRAKRISHNAN R2 BY ADV. SRI.S.RAJEEV R2 BY ADV. SRI.V.VINAY R1 BY SRI.K.B.UDAYAKUMAR, SR.PP** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 15.01.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.MC.No.1163 OF 2016(E) 2 ## **P.V.KUNHIKRISHNAN, J** ## **-------------------------------Crl.M.C No.1163 of 2016 ------------------------------Dated this the 15[th] day of January, 2021** ## **O R D E R** This petition under Section 482 Cr.P.C is filed to quash the proceedings in C.P No.6/2016 on the file of the Judicial First Class Magistrate Court, Nilambur by which the learned Magistrate taken cognizance of the offence under Sections 302, 201, 506 and 120B r/w 34 IPC based on a protest complaint. 2. The prosecution case is that the petitioners committed murder of Ayyappunni aged 85 years. The deceased is the father of the 2[nd] respondent. The petitioners 1 to 3 are also the children of the deceased. The 4[th] petitioner is the wife of the 3[rd] petitioner. 3. The police registered Annexure C crime based on a complaint filed by the 2[nd] respondent which was forwarded under Section 156(3) Cr.P.C. Subsequently after investigation the police referred the case as a false case. Annexure D is the refer report. Thereafter, a protest complaint was filed by the 2[nd] respondent. Annexure A is the protest complaint. Based on Annexure A protest complaint, the learned Magistrate after conducting preliminary enquiry, took cognizance of the offence under Crl.MC.No.1163 OF 2016(E) 3 Sections 302, 201, 506 and 120B r/w 34 IPC. Annexure B is the proceedings sheet of the learned Magistrate. The order passed on 23.1.2016 is extracted hereunder: “Petitioner represented. Perused statements and records. Primafacie case made out. Cognizance taken of the offences u/s.302, 201, 506, 120(b) r/w 34 IPC, against A1-4. Taken on file as C.P 06/2016. Issue summons to accused by registered post with AD.” 4. This Criminal Miscellaneous Case is filed to quash the entire proceedings in C.P No.6/2016 on the file of the Judicial First Class Magistrate Court, Nilambur. 5. Heard the learned counsel for the petitioners and the counsel who appeared for the 2[nd] respondent. I also heard the learned Public Prosecutor. 6. The learned counsel for the petitioners submitted that the learned Magistrate erred in taking cognizance based on the protest complaint without referring the refer report. The counsel submitted that taking cognizance by the learned Magistrate without considering the refer report is in violation of the decisions of this Court in **Parameswaran Nair v. Surendran (2009(1) KLT 794)** and **Khader v. State of Kerala (1999(3) KLT 55)** . The counsel also submitted that even if the entire allegations are accepted, Annexure A complaint and Annexure B proceedings by which the learned Crl.MC.No.1163 OF 2016(E) 4 Magistrate took cognizance is unsustainable and is an abuse of process of law. 7. The learned counsel for the 2[nd] respondent submitted that in the order dated 20.10.2015 in Annexure B proceedings it is clearly stated that the complaint is posted along with the R.C proceedings. Therefore, it is presumed that the learned Magistrate considered the refer report. The counsel also submitted that this Court may not interfere to an order taking cognizance of the offence. The petitioner can raise all his contentions before the lower court at the appropriate stage. 8. It is an admitted fact that the police investigated this case and after investigation referred the case as false. Annexure D is the final report. After referring the case by the police, Annexure A protest complaint is filed. Thereafter, the learned Magistrate after conducting enquiry under Section 202 Cr.P.C took cognizance of the offence as per order dated 23.1.2016 in Annexure B proceedings. But in the order dated 23.1.2016 there is nothing to show that the learned Magistrate considered Annexure D refer report. This Court in **Khader** 's case (supra) was observed like this: “7. The Court noted that the scope of enquiry under S.202 is the ascertainment of the truth of falsity of the allegations made in the complaint on the materials placed by the Crl.MC.No.1163 OF 2016(E) 5 complainant before the Court for the limited purpose of finding out whether the prima facie case for issue of process has been made out and for deciding the question purely from the point of view of the complainant without at all adverting to any defence that the accused may have. Nevertheless, the Court has a duty to protect the interest of the absent accused also because at the particular stage, the accused has no say in the matter and the matter is decided without notice to him. It is, therefore, open to the Magistrate to scrutinise carefully the allegations made in the complaint with a view to prevent the accused therein from being called upon to face obviously frivolous complaint and to find what material there is to support the allegations made in the complaint. The Magistrate has a duty not only to bring to book a person or persons against whom grave allegations are made in the complaint but also to protect the interest of the absent accused in such matters. What all matters he should take into consideration to arrive at the conclusion that he should take cognizance of the offence, will depend upon the facts and circumstances of each case. He has necessarily to consider the allegations made in the complaint and the statement of the complainant recorded under S.200 Cr.P.C as also of the witnesses examined under S.202 of the Cr.P.C. Along with that, he has also to consider the result of enquiry or investigation, if any, held by the police. It cannot be said that the said data is not an essential factor. The consideration of the materials under S.202 of the Cr.P.C is not an empty formality and cannot be done in a perfunctory or mechanical manner or by adopting a superficial approach.” (Emphasis supplied) ## 9. Similarly in **Parameswaran Nair's** case this Court again considered this and observed like this: “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 Crl.MC.No.1163 OF 2016(E) 6 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.” 10. In the light of the above judgments of this Court, the order taking cognizance by the learned Magistrate without considering the refer report is not proper. I don't want to make any observation on merit in this case. According to me, the procedure adopted by the learned Magistrate in taking cognizance without considering the refer report is not proper. It is true that in the order dated 20.10.2015 in Annexure B proceedings it is stated that “call with connected RC on 28.10.2015”. But in the order dated 23.1.2016 by which the learned Magistrate took cognizance, there is nothing to show that the refer report was considered by the learned Magistrate. Therefore, the order dated 23.1.2016 taking cognizance by the Judicial First Class Magistrate Court, Nilambur as C.P No.6/2016 is liable to be quashed. Crl.M.C is allowed. The order dated 23.1.2016 in Annexure B proceedings are quashed. The learned Magistrate is directed to reconsider the entire Crl.MC.No.1163 OF 2016(E) 7 matter in the light of the principles laid down by this Court in **Parameswaran Nair** 's and **Kader** 's case (supra). The learned Magistrate will pass appropriate orders within six weeks from the date of receipt of a copy of this order. ## **Sd/-** ## **P.V.KUNHIKRISHNAN** **JUDGE** **ab** Crl.MC.No.1163 OF 2016(E) 8 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** |**ANNEXURE P1**|**ANNEXURE-A: TRUE COPY OF THE PRIVATE**| |---|---| ||**COMPLAINT FILED BY THE 2ND RESPONDENT**| ||**HEREIN BEFORE THE J.F.C.M., NILAMBUR**| |**ANNEXURE P2**|**ANNEXURE-B: TRUE COPY OF THE DIARY**| ||**EXTRACT OF THE PROCEEDINGS OF ANNEXURE**| ||**A COMPLAINT**| |**ANNEXURE P3**|**ANNEXURE-C: TRUE COPY OF THE F.I.R IN**| ||**CRIME NO.753/2014 OF THE EDAKKARA**| ||**POLICE STATION, DATED 17.12.2014**| |**ANNEXURE P4**|**ANNEXURE-D: TRUE COPY OF THE REFER IN**| ||**CRIME NO.753/2014 OF THE EDAKKARA**| ||**POLICE STATION.**| |**ANNEXURE P5**|**ANNEXURE-E: TRUE COPY OF THE EVIDENCE**| ||**GIVEN BY THE DR.N.PRABHAKARA RAO IN**| ||**C.M.P NO.6879/2015 BEFORE THE J.F.C.M.,**| ||**NILAMBUR**| |**ANNEXURE P6**|**ANNEXURE-F: TRUE COPY OF THE TREATMENT**| ||**RECORD ISSUED FROM THE MARTHOMA MISSION**| ||**HOSPITAL, CHUNGATHARA.**| RESPONDENTS EXHIBITS: NIL //TRUE COPY// P.A TO JUDGE ab