Icy John v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **WEDNESDAY, THE 6TH DAY OF AUGUST 2014/15TH SRAVANA, 1936** ## **Crl.MC.No. 2936 of 2011 ( )** **---------------------------CC.NO.47/2009 OF CHIEF JUDICIAL MAGISTRATE COURT, KOTTAYAM CRIME NO.514/2008 OF KOTTAYAM EAST POLICE STATION** **---------------------** ## **PETITIONER :** **-----------------------** **ICY JOHN, AGED 30 YEARS, D/O.CHANDY JOHN, RESIDING AT VATTAKUNNEL, PULICKAL, MUTTAMBALAM, KOTTAYAM.** **BY ADV. SRI.M.J.THOMAS** ## **RESPONDENT(S):** **----------------------------** **1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **2. THE CIRCLE INSPECTOR OF POLICE, KOTTAYAM EAST.** **3. THE SUB INSPECTOR OF POLICE, KOTTAYAM EAST POLICE STATION.** **BY PUBLIC PROSECUTOR SMT. S.HYMA** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 06-08-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **sts** ## **CRMC.NO.2936/2011** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:** **ANNEX 1 COPY OF THE OP TICKET ISSUED BY THE DISTRICT HOSPITAL, KOTTAYAM DATED 11/9/2008 ANNEX 2 COPY OF THE OP TICKET ISSUED BY THE MEDICAL COLLEGE HOSPITAL DATED 11/9/2008 ANNEX 3 COPY OF THE FIR WITH FI STATEMENT IN CRIME NO.514/2008 OF KOTTAYAM EAST POLICE STATION ANNEX 4 COPY OF THE COMPLAINT SUBMITTED BY THE PETITIONER AND HER BROTHER TO THE SUPERINTENDENT OF POLICE, KOTTAYAM. ANNEX 5 COPY OF THE JUDGMENT DATED 6/10/2008 IN WP(C).NO.29343/2008 ANNEX 6 COPY OF THE CMP.NO.5554/2008 FILED BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT NO.1, KOTTAYAM ON 10/12/2008. ANNEX 7 COPY OF THE JUDGMENT IN WP(C).NO.3302/2009 ANNEX 8 COPY OF THE PETITION DATED 1/7/2009 REQUESTING THE HON'BLE COURT TO CALL THE ABOVE CRIME CASE AT THE BENCH. ANNEX 9 COPY OF THE ORDER SHEET IN CMP.NO.5554/08 ANNEX 10 COPY OF THE JUDGMENT IN WP(C).NO.24998/2009 DATED 8/10/2010 ANNEX 11 CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO.514/2008 OF KOTTAYAM EAST POLICE STAITON ANNEX 12 COPY OF THE ORDER DATED 13/4/2010 IN CMP.NO.5554/2008 ANNEX 13 COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER TO THE INFORMATION OFFICER, KOTTAYAM EAST POLICE STATION ANNEX 14 COPY OF THE LETTER DATED 12/9/2011 IN REPLY TO ANNEXURES 13. ANNEX 15 COPY OF THE COMMUNICATION DATED 28/10/2011 REJECTING THE APPEAL FILED BEFORE THE DY.S.P. KOTTAYAM ANNEX 16 CERTIFIED COPY OF THE ORDER SHEET IN CC.NO.47/2009 ON THE FILE OF THE CHIEF JUDICIAL MAGISTRATE COURT, KOTTAYAM.** **RESPONDENT'S ANNEXURES: NIL** **/TRUE COPY/** **P.A.TO.JUDGE** **sts** K. RAMAKRISHNAN, J. -------------------------------------------------------------------------------Crl. M.C. No.2936 of 2011 -----------------------------------------------------------------------Dated this the 6[th] day of August, 2014 ## O R D E R This criminal miscellaneous case is filed by the petitioner, who is the defacto-complainant in the matter to set aside Annexure-12 order and give opportunity for rehearing under Section 482 of the Code of Criminal Procedure. 2. It is alleged in the petition that, on the basis of the first information statement given by the petitioner, Crime No.514/2008 of Kottayam East police station was registered against one Thankachan and son of Thankachan and though requests have been made to the police officers for conducting proper investigation, they did not take steps to arrest the real culprits and not filed a final report, so the petitioner filed W.P.(C).No.29343/2008 and this court by Annexure-5 order, relying on the decision reported in **Sakiri Vasu v. State of U.P. (2008 AIR SCW 309)** and Crl. M.C 2936/2011 2 **Vasanthi Devi v. Sub Inspector of Police (2008(1) KLT 945)** , directed the petitioner to approach the learned magistrate with an appropriate application under Section 156(3) of the Code of Criminal Procedure and also mentioned therein that, if such an application is filed, the learned magistrate must consider such application on merit and pass appropriate orders and if she is not satisfied with the order of the learned magistrate, she is at liberty to move this court later, against that order. On that basis, the petitioner filed Annexeure-6 petition before the Judicial First Class Magistrate-I, Kottayam, as Crl.M.P.No.5554/2008, but no orders have been passed in that application for long time. Thereafter, petitioner again filed W.P.(C) No.24998/2009 but that was later withdrawn with liberty to challenge the final report and thereafter, the petitioner filed Annexure-6 and also filed W.P.(C). No.3302/2009 and this court by Annexure-7 judgment disposed of the matter, directing the magistrate to consider Crl. M.C 2936/2011 3 Ext.P5 application, after filing of the final report and only after hearing the objections of the petitioner that can be disposed of and pass appropriate directions either under Section 156(3) of the Code of Criminal Procedure or under Section 173(8) of the Code of Criminal Procedure and the petition was dismissed with the above observation. Though the petitioner filed Annexure-6 application, without hearing the petitioner on a day when the petitioner was absent, the learned magistrate closed the petition and accepted final report. So the petitioner has no other remedy, except to approach this court, seeking the following reliefs: i. To direct the Chief Judicial Magistrate, Kottayam to hear on Annexure-6 and 11 as directed in Annexure-7 judgment and to pass appropriate orders; ii. To direct the Chief Judicial Magistrate, Kottayam to return Annexure-11 Final Report with a direction to the investigating agency to conduct further investigation and to submit a proper final report. iii. To set aside Annexure-12 order and to direct the Chief Judicial Magistrate Court, Kottayam to proceed with Annexure-6 as provided under Section 210 of the Code of Criminal Procedure; and iv. Such other relief as this Hon'ble court may deem fit and proper in the interest of justice. 3. On the basis of the allegations in the petition, Crl. M.C 2936/2011 4 this court has call for a report from the Chief Judicial Magistrate Court, Kottayam, regarding the present stage and the orders passed in the petition filed by the petitioner, namely, Crl.M.P.No.5554/2008 and the learned Chief Judicial Magistrate has sent a report which reads as follows: “With reference to the above, I may be permitted to submit the following for favour of kind consideration. Smt. Icy John has on 11.9.2008 lodged a first information statement with the S.H.O., Kottayam East Police Station and on the basis of the said statement, Kottayam East Police Station Crime 514/2008 is registered against 4 accused persons for the offences punishable u/ss.323, 452, 326, 308, 294(b), 427 r/w. 34 IPC. FIR is filed before the Judicial Ist Class Magistrate Court-I, Kottayam, FIR and connected records were subsequently forwarded to this court as this court is to try that case. The records reveal that while the investigation was in progress, the defacto-complainant Smt. Icy John has filed CMP.5554/2008 before the Judicial Ist Class Magistrate Court-I, Kottayam on 10.02.2008 seeking monitoring and the supervision of the investigation and also seeking directions from the court for the proper conduct of the investigation. Prayer in the said petition is reproduced below: “BWpL¤ SWLaf]p]Rs hpvOºLp] RRNWU 514/08 &R£ C.D. File v]t] \ÿO vqO¾] a]. SWô]R£ ASj~xeU monitor R\pÅOU supervice R\pÅOU ASj~xe¾]¤ CaRkŸOU ASj~xeU JfO v]i¾]¤ ja¾eRoÐOU WLe]\ÿV ASj~xe DSh|LYòjV oL¡«j]¡SÇwU j¤W]pOU ANkWLqU ASj~xe DSh|LYò¢ Nkv¡¾]\ÿ]ŸOSºL IÐV kq]SwLi]\ÿOU a].RRNWU SWôV wq]pLp v]i¾]¤ ASj~xeU ja¾] charge sheet RWLaO¨OvLjOç So¤ jaka]W¥ y~}Wq]¨eRoÐV Askƒ]\ÿORWLçOÐO” In that petition, notice is ordered to the SHO., Crl. M.C 2936/2011 5 Kottayam East Police Station and he is directed to submit a report regarding the stage of investigation. On the next posting day SHO has filed a report stating that charge sheet is already filed. On perusal of the final report and on the basis of CMP 5554/2008 court has ordered further investigation and called for reports from SHO., Kottayam East Police Station regarding progress of investigation. The said petition is then adjourned to several dates. In the mean time final report is filed on 07.09.2009 against 5 accused persons for the offences punishable u/ss 452, 294(b), 323, 326, 427 r/w. 34 IPC. The said final report after perusal, is returned by this court with a direction to resubmit the same after curing the defects noted therein. The defects were cured and the final report is resubmitted on 17.09.2009. On 17.09.2009 CMP 5554/2008 filed by the defactocomplainant is posted and adjourned for hearing to 13.10.2009. On 13.10.2009 it is noted in the orders sheet of CMP that “charge sheet filed. For hearing to 12.11.2009”. On 12.1.2009 and on the subsequent posting dates also the petition was adjourned for hearing. On 1.2.2010 it is ordered by the learned predecessor in office that “petitioner present. No other petition filed. Hence for hearing to 13.4.2010”. On 13.4.2010 the petition is seen closed with the following order: “Petitioner absent. In Crime 514/2008 investigating officer has filed final report and the case was taken on file as CC47/2009. Petitioner has not filed any protest complaint. Hence incorporate the records with the case” From the above order it is seen that the above CMP is disposed of on 13.4.2010 as closed. I may further submit that learned predecessor-in-office has closed the CMP as the purpose of the petition is accomplished by the filing of the final report as is seen from the prayer on the petition which is reproduced above. I may further submit that Smt.Icy John did not file any other complaint before this court till day. The above report is submitted as directed vide reference cited supra along with copy of the final order dated 13.4.2010 in CMP 5554/2008”. Crl. M.C 2936/2011 6 4. Heard the learned counsel for the petitioner and learned Public Prosecutor. 5. The learned counsel for the petitioner submitted that, in fact there is a direction in Annexure-7 that, after the final report is filed, the learned magistrate has to consider the petition filed by the petitioner, evidenced by Annexure-6 and pass appropriate orders either under Section 156(3) or under Section 173(8) of the Code of Criminal Procedure. But in this case, no such order has been passed, though the petitioner was ready for hearing on several occasions. But the impugned order has been passed at a time when he was not present on a particular day and the petition was closed and the learned magistrate proceeded with the final report already filed. 6. The grievance of the petitioner is that, the real persons have not been made accused in spite of the fact that, statements have been given by the petitioner as well as her witnesses on this aspect. No reason has been given for, not implicating those persons. Though grave 7 Crl. M.C 2936/2011 offence has been alleged, they were not incorporated. So, the petitioner wants only a fair hearing of her grievances mentioned in Annexure-6 petition and pass appropriate orders by the learned magistrate. 7. The learned Public Prosecutor submitted that, proper investigation had been conducted and only on the basis of the proper investigation, final report has been filed and no interference is called for in that and no illegality has been committed by the learned magistrate as well. 8. It is an admitted fact that, on the basis of the statement given by the defacto-complainant/petitioner herein, Crime No.514/2008 of Kottayam East police station was registered originally against one Thankachan and his son, alleging offences under Section 323, 452, 326, 308, 427 and 294(b) read with Section 34 of the Indian Penal Code and the first information report was originally sent to Judicial First Class Magistrate Court-I, Kottayam, and thereafter the same were forwarded to the Chief Judicial 8 Crl. M.C 2936/2011 Magistrate Court, Kottayam, and now it is pending before that court. It is also seen from the documents produced that, since the petitioner was not satisfied with the investigation, she filed W.P.(C).No.29343/2008 before this court and this court has disposed of that writ petition by Annexure-5 order, directing the petitioner to file a complaint before the magistrate court and if such a complaint is filed, learned magistrate is directed to consider the application on merit and pass appropriate orders. Thereafter, the petitioner filed Annexure-6 petition namely, Crl.M.P.No.5554/2008 before the Judicial First Class Magistrate Court-I, Kottayam, for proper investigation, alleging grave offences as well and no orders were passed in that application. So the petitioner filed W.P.(C). No.3302/2009 before this court and this court by Annexure7 order dismissed the writ petition with following observation: “Ext.P5 application is pending before the learned Judicial Magistrate of the First Class-I, Kottayam. The petitioner has a grievance against the final report that Crl. M.C 2936/2011 9 has already been filed. The petitioner can certainly raise her objections against the final report before the learned magistrate and the learned magistrate must consider such petitions of the petitioner and pass appropriate orders. I find absolutely no justification in the petitioner rushing to this court. The petitioner can bring to the notice of the leaned magistrate that Ext.P5 application is pending even now. She can raise further objections if any against the final report. The leaned magistrate must consider all the petitions and pass appropriate directions under Section 156(3) Cr.P.C. or Section 173(8) Cr.P.C. 9. Since the final report was not filed in the case, petitioner filed W.P.(C).No.24998/2009, for giving a direction to the investigating officer to file final report and that petition was dismissed as withdrawn, with liberty to challenge the final report, as by the time final report has already been filed. The grievance of the petitioner is that, though there is a direction in Annexure-7 that, after filing the final report, the magistrate must consider Annexure-6 application filed by the petitioner, which was exhibited as Ext.P5 in that writ petition and pass appropriate orders either under Section 156(3) or 173(8) of the Code of Criminal Procedure, the learned magistrate has not passed any orders on merit. It is also seen from the proceedings Crl. M.C 2936/2011 10 paper produced by the petitioner in Crl.M.P.No.5554/2008 as Annexure-9 and also from the report from the Chief Judicial Magistrate that, the petitioner was regularly present and represented through counsel vigilantly from 2008 onwards. It is also seen from the proceedings paper, namely, Annexure-9 that, the case records were forwarded to the Chief Judicial Magistrate Court and accordingly this petition was also sent to that court. This is the order dated 30.05.2009, passed by the Judicial First Class Magistrate Court-I, Kottayam. It is seen from the report that, even after receipt of that application, it was posted for hearing and on all those days, the appearance of the petitioner was noted, but no other petition filed by the accused/petitioner except Crl.M.P.No.5554/2008 and it is seen from the report that, on 13.04.2010, the learned magistrate has closed the petition noting as follows: “Petitioner absent. In crime in 514/2008, investigating officer has filed final report and the case was taken on file as C.C.No.47/2009. The petitioner has not filed any protest complaint. Hence incorporate the records with the case”. 11 Crl. M.C 2936/2011 10. This order is being challenged by the petitioner now. It may be mentioned here that, when the investigation was pending and the petitioner filed a complaint, which was numbered as Crl.M.P.No.5554/2008, then the option for the magistrate is either to send that complaint also to the police for investigation to be investigated along with the pending crime or keep the complaint, awaiting the report of the investigating officer as contemplated under Section 210 of the Code of Criminal Procedure and after the final report is filed and if the petitioner is not satisfied with the final report, giving an opportunity to the complainant to adduce evidence on the complaint already filed and proceed with that matter in accordance with law. But in this case, it is seen from the report that, though no orders have been passed in Annexure-6 complaint filed by the petitioner till the final report is filed in the matter and even thereafter, though the petitioner was present and prepared to argue the petition that was not taken up but simply adjourned and later on a 12 Crl. M.C 2936/2011 day when the petitioner was not present, the petition was closed by the impugned order, which appears to be unsustainable in law. The learned magistrate ought to have given an opportunity to the complainant to pursue with the Annexure-6 complaint as an independent complaint, as provided under Section 210 of the Code of Criminal Procedure and passed appropriate orders in that petition, which has not been done in this case and that was the observation made by this court in Annexure-7 judgment as well. So under the circumstances, this court feels that, it is necessary in the interest of justice, to set aside the order passed by the Chief Judicial Magistrate, Kottayam, in Crl.M.P.No.5554/2008 as closed, and the matter has to be remitted to the court below for fresh disposal on that application in accordance law and I do so. The learned magistrate is directed to take Crl.M.P.No.5554/2008 on file and give an opportunity to the petitioner to prosecute that petition/complaint and then pass appropriate orders in 13 Crl. M.C 2936/2011 accordance with law. The interim order granted is vacated. The petitioner is directed to appear before the court below on 29.08.2014 and the learned magistrate is directed to dispose of that application as expeditiously as possible, at any rate within two months from the date of receipt of this order. With the above direction and observation, the criminal miscellaneous case is disposed of. Office is directed to communicate this order to the concerned court, immediately. Sd/- ## **K. RAMAKRISHNAN, JUDGE** // True Copy// P.A. to Judge ss