D. Jayakumar and J. Paul Pradeep Kumar v State of Kerala and M. Selvaraj

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN WEDNESDAY, THE 20[TH] DAY OF DECEMBER 2023 / 29TH AGRAHAYANA, 1945 CRL.MC NO. 1903 OF 2017 ``` ``` CRIME NO.18/2007 OF CBCID, ERNAKULAM, ERNAKULAM AGAINST THE ORDER/JUDGMENT CC 761/2016 OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE, ERNAKULAM ``` ``` PETITIONERS/ACCUSED 1 TO 3: 1D.JAYAKUMAR S/O.DANUSHKODI, PERMANENTLY RESIDING AT 35/4,NETHAJI STREET, AYYAPPAN NAGAR, TRICHY-620 021. ``` ``` 2J.PAUL PRADEEP KUMAR S/O.JAGADEESH KUMAR, 283-D, NAGAL NAGAR, BODINAYAKKAN PATTI, DINDIGAL-624 003. BY ADV SRI.P.VIJAYARAGHAVAN ``` ## **`RESPONDENT/STATE/DEFACTO COMPLAINANT:`** - **`1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682 031.`** - **`2 M.S.SELVARAJ S/O.SUBBAIA, THATTETHARA HOUSE, B.NO.28/2417, CHILAVANNOOR, ERNAKULAM - 682 020.`** ``` BY ADVS. SMT. SREEJA V, PP SRI.K.K.DHEERENDRAKRISHNAN SRI.D.FEROZE SRI.S.RAJEEV SRI.V.VINAY ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ``` ``` ON 20.12.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` CRL. M.C. NO.1903 OF 2017 ``` 2 **P.V.KUNHIKRISHNAN, J. -------------------------------Crl.M.C. No.1903 of 2017 ------------------------------------Dated this the 20[th ] day of December, 2023** ## **O R D E R** The petitioners in this Crl.MC are the accused Nos.1 and 2 in CC No.761/2016 on the file of the Additional Chief Judicial Magistrate Court, Ernakulam. It is submitted that the 2[nd] respondent herein preferred Annexure-II complaint dated 04.01.2007 as MP No.100/2007 before the Additional Chief Judicial Magistrate Court, Ernakulam on 04.01.2007 and the same was forwarded to the Ernakulam Town South Police Station under Section 156(3) Cr.P.C. Pursuant to 3 ``` CRL. M.C. NO.1903 OF 2017 ``` the above complaint Crime No.18/2007 was registered under Sections 120-B, 193, 209, 380, 465, 468, 471 and 420 of IPC. Thereafter, the Sub Inspector of Police, Town Police Station submitted a refer report on 26.04.2007 reporting that the case is false. Annexure-III is the report. Thereupon, the 2[nd] respondent herein approached this Court by filing Crl.MC No.48/2008 with a prayer to transfer the further investigation of the case to the Crime Branch. This Court vide order dated 04.01.2008 allowed the petition and the CBCID was directed to take over the investigation and to file the report expeditiously. 2. In compliance with the abovesaid order, the investigation was taken over by the CBCID and after conducting a detailed investigation the 4 ``` CRL. M.C. NO.1903 OF 2017 ``` CBCID also found that the complaint is vexatious. Annexure-IV is the report submitted by the CBCID. Thereafter, notice was issued to the defacto complainant calling for his objection. On receiving notice, the defacto complainant filed his objection and thereafter preferred Annexure-V protest complaint on 28.01.2016. The court below, acting upon the said protest complaint and a statement given by the defacto complainant and two witnesses, had taken cognizance of the alleged offences as evident by Annexure-VI order. Aggrieved by the same, this Crl.MC is filed. 3. Heard the learned counsel appearing for the petitioner, the learned Public Prosecutor and also the learned counsel appearing for the 2[nd] respondent. ``` CRL. M.C. NO.1903 OF 2017 ``` 5 4. It is an admitted fact that the Police and Crime Branch referred the matter and thereafter the learned Magistrate taken cognizance on Annexure-II complaint. It is also an admitted fact that a perusal of Annexure-VI would not show that the learned Magistrate peruse Annexure-III and IV before taking cognizance of the offences. In **Parameswaran Nair v. Surendran and Another [2009 (1) KHC 801]** , this Court 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 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. ``` CRL. M.C. NO.1903 OF 2017 ``` 6 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.' 5. In the light of the above principle, it is clear that it is the duty of the court below to consider the matter in the light of the refer report filed by the complainant. Annexure-VI would not show that it is an order taking cognizance as per the principles laid down by this Court in **Parameswaran Nair’s case** (supra). 6. Hence, I am of the considered opinion that Annexure-VI is to be set aside and the matter is to be remitted back to the lower court for fresh disposal. Therefore, this Criminal Miscellaneous Case is 7 ``` CRL. M.C. NO.1903 OF 2017 ``` disposed of with the following directions; 1. Annexure-VI order is set aside. 2. The Additional Chief Judicial Magistrate Court, Ernakulam is directed to reconsider the complaint in the light of the principles laid down by this Court in **Parameswaran Nair’s case** (supra.) Sd/- nvj **P.V.KUNHIKRISHNAN JUDGE** ``` CRL. M.C. NO.1903 OF 2017 ``` 8 ## **`APPENDIX OF CRL.MC 1903/2017`** ``` PETITIONER ANNEXURES ``` ``` ANNEXURE ITRUE COPY OF THE AGREEMENT DATED 12.12.2005EXECUTEDBETWEEN D.JAYAKUMAR AND SELVARAJ. ANNEXURE IITRUE COPY OF THE COMPLAINT M.P.NO.100/2007DATED4.1.2007 FILED BY THE 2ND RESPONDENT BEFORE THE ADDL. CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM. ``` - `ANNEXURE III TRUE COPY OF THE REFER REPORT DATED 26.4.2007 SUBMITTED BY THE SUB INSPECTOR OF POLICE, TOWN SOUTH POLICE STATION BEFORE THE ADDL. CHIEF JUDICIAL MAGISTRATE, ERNAKULAM.` ``` ANNEXURE IVTRUE COPY OF THE FINAL REPORT IN CRIME NO.18/2007 SUBMITTED BY THE SUB INSPECTOR OF POLICE, ERNAKULAM TOWN SOUTH POLICE STATION BEFORE THEADDL.CHIEFJUDICIAL MAGISTRATE. ``` ``` ANNEXURE VTRUE COPY OF THE PROTEST COMPLAINT FILED BY THE 2ND RESPONDENT BEFORE THE CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM DATED 28.1.2016. ``` ``` ANNEXURE VITRUE COPY OF THE PROCEEDINGS IN C.C.NO.761/2016 ISSUED BY THE COURT OF ADDL. CHIEF JUDICIAL MAGISTRATE, ERNAKULAM. ``` ``` CRL. M.C. NO.1903 OF 2017 ``` **==> picture [7 x 10] intentionally omitted <==** ``` ANNEXURE VII ``` ``` TRUE CERTIFIED COPY OF THE ORDER DATED 3.9.2016 IN C.C.NO.761/2016 OF THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM. ``` ``` RESPONDENTS EXHIBITS:NIL ``` ``` //TRUE COPY//PA TO JUDGE ```