Dr. Prabhavathi K.S. v. State of Kerala and Dr. Anitha Kumari

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **MONDAY, THE 22[ND] DAY OF JULY 2024 / 31ST ASHADHA, 1946** **CRL.MC NO. 10213 OF 2023** **CRIME NO.448/2021 OF MEDICAL COLLEGE POLICE STATION, KOZHIKODE IN S.T.NO.239/2023 OF JUDICIAL MAGISTRATE OF FIRST CLASS, KUNNAMANGALAM PETITIONER/ACCUSED:** **DR.PRABHAVATHI K.S.,** **AGED 63 YEARS, W/O.M.K.VINEETH, RTD. PROFESSOR & HEAD OF THE DEPARTMENT OF PSYCHIATRY, KOZHIKODE MEDICAL COLLEGE, RESIDING AT SARAYU, GOLF LINK ROAD, CHEVAYUR P.O., KOZHIKODE (DIST), PIN-673017.** **BY ADV K.DEEPA (PAYYANUR)** ## **RESPONDENTS/COMPLAINANT:** - **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN-682031.** **2 DR.ANITHA KUMARI, AGED 51 YEARS, AYIROLIMEETHAL, D/O.KELUKUTTY,AYIROLI HOUSE, PARAPPADI, MARIKUNNU P.O, KOZHIKODE (DIST), PIN-673012** **BY ADVS. P.V.ANOOP PHIJO PRADEESH PHILIP(K/1150/2010) ANJU R S.(K/002806/2022) K C MOHAMED RASHID(K/1341/2023) BIJITHA B. BOSE(K/002479/2023)** **R1 SRI.M.P.PRASANTH, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 22.07.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C. No.10213 of 2023 ## -:2:- ## **ORDER** ## **Dated this the 22[nd] day of July, 2024** This Crl.M.C. has been filed under Section 482 of the Code of Criminal Procedure by the petitioner, who is the sole accused in Crime No.448/2021 of Medical College Police Station, Kozhikode, now pending as S.T. No.239/2023 on the files of Judicial First Class Magistrate Court, Kunnamangalam, seeking to quash Annexure A3 Order in the above said case. 2. Heard the learned counsel for the petitioner, the learned counsel for the defacto complainant and the learned Public Prosecutor in detail. Perused the relevant records. 3. As per Annexure 3 order, acting on the complaint filed by the defacto complainant, the Magistrate took cognizance and the order of cognizance dated 15.08.2023 reads as under:- “Complainant absent, represented. Heard. From the documents produced and affidavit filed, this court satisfied that there is sufficient grounds for proceed Crl.M.C. No.10213 of 2023 -:3:- against the accused for an offence U/s 499, 500 of IPC. Hence taken on file as S.T.239/2023. Issue summons to accused – 03-06-2023.” 4. Although it is argued by the learned counsel for the petitioner that the imputation to attract offences under Sections 499 and 500 of the Indian Penal Code is not made out, this Court cannot not address the said fact since the order of cognizance extracted herein above, doesn't say what are the materials relied on by the learned Magistrate and how, the Magistrate concluded that prima facie case, is made out to take cognizance. 5. It has been consistently held that an order taking cognizance should be self speaking with cogent reasons. In the decision reported in **Chandran V.R. v. State of Kerala** [2024 KHC OnLine 514], this Court considered this issue referring to the Apex Court verdicts on this point and held in Paragraphs 6, 7 and 10 as under; Crl.M.C. No.10213 of 2023 -:4:- “6. The learned Counsel for the petitioner relied on the decision of the Apex Court in **M/s. Pepsi Foods Ltd and Another v. Special Judicial Magistrate and Others** 1998 KHC 1055, with reference to paragraph No.28, while stressing the point that the order taking cognizance shall be a reasoned order with application of mind by the Magistrate, where it was held as under: “Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge Crl.M.C. No.10213 of 2023 -:5:- home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.” 7. The learned Counsel for the petitioner further relied on the decision in **GHCL Employees Stock Option Trust (M/s) v. M/s. India Infoline Ltd and** **Others** 2013 KHC 4229, with reference to paragraph No.14, in support of his contention. The same reads as under: “Be that as it may, as held by this Court, summoning of accused in a criminal case is a serious matter. Hence, criminal law cannot be set into motion as a matter of course. The order of Magistrate Crl.M.C. No.10213 of 2023 -:6:- summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. The Magistrate has to record his satisfaction with regard to the existence of a prima facie case on the basis of specific allegations made in the complaint supported by satisfactory evidence and other material on record.” xxxx xxxx xxxx 10. Adverting to the legal position with reference to the essentials to be stated in an order taking cognizance, it is held that the order of Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. The Magistrate has to record his satisfaction with regard to the existence of a prima facie case on the basis of specific allegations made in the complaint supported by satisfactory material evidence on record. Criminal law cannot be set into motion as a matter of course. The Court has to examine the nature of allegations made in the complaint and the evidence both oral and Crl.M.C. No.10213 of 2023 -:7:- documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.” 6. Keeping the legal position in mind, no doubt, Annexure A3 order is a non-speaking one and the same is _per-se_ illegal. Accordingly, the same stands set aside and the matter is remitted back to the Magistrate for reconsideration in view of legal position espoused, based on the complaint and the materials. Accordingly, this petition stands allowed directing the Magistrate to pass fresh order in the matter of cognizance with a reasoned order. This shall be done within a period of one month from the Crl.M.C. No.10213 of 2023 -:8:- date of receipt of a copy of this order. Registry shall forward a copy of this order to the trial court for information and compliance. Sd/- **A. BADHARUDEEN JUDGE** bpr Crl.M.C. No.10213 of 2023 -:9:- ## **APPENDIX OF CRL.MC 10213/2023** **PETITIONER'S ANNEXURES** **Annexure-A1** **TRUE COPY OF THE COMPLAINT DATED 07.01.2022 FILED BY THE COMPLAINANT AGAINST THE PETITIONER BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT; KUNNAMANGALAM.** ## **Annexure-A2** **TRUE COPY OF THE WRITTEN STATEMENT, DATED NIL, FILED BY THE PETITIONER BEFORE THE ENQUIRY COMMITTEE.** ## **Annexure-A3** **TRUE COPY OF THE EXTRACT OF PROCEEDING SHEET OF JUDICIAL FIRST CLASS MAGISTRATE COURT, KUNNAMANGALAM, WHICH SHOWS THE ORDER PASSED BY THE LEARNED MAGISTRATE ON 15.02.2023 THAT THE CASE WAS TAKEN ON FILE AS S.T.NO.239/2023.** ## **Annexure-A4** **TRUE COPY OF THE FINAL REPORT DATED 25.03.2022 OF CRIME NO. 448/2021 OF THE MEDICAL COLLEGE POLICE STATION, KOZHIKODE CITY, WHICH WAS REFERRED TO THE 2ND RESPONDENT.**