Jijo v. Mathew and Moli and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 23RD DAY OF MAY 2012/2ND JYAISHTA 1934 Crl.Rev.Pet.No. 816 of 2012 () -----------------------------(CMP.5852/2011 of J.M.F.C.- I, CHALAKUDY) PETITIONER(S)/COMPLAINANT: ---------------------------------- JIJO S/O.ANDREWS, PELLISSERI HOUSE, CHALAKUDY VILLAGE CHALAKUDY, THRISSUR DISTRICT. BY ADVS.SRI.RENJITH THAMPAN (SR.) SRI.V.M.KRISHNAKUMAR RESPONDENT/ACCUSED AND STATE: --------------------------------- 1. MATHEW S/O.OUSEPH, CHENGINIMATTAM HOUSE, CHALAKUDY.P.O. THRISSUR DISTRICT. PIN-680 307. 2. MOLI, AGED 42 YEARS W/O.MATHEW, CHENGINIMATTAM HOUSE, CHALAKUDY.P.O. THRISSUR DISTRICT. PIN-680 307. 3. STATE OF KERALA REPRESENTED PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. PIN-680 031. BY PUBLIC PROSECUTOR SMT.SEENA RAMACHANDRAN-R3 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 23-05-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## CRL.R.P.816/12 ## APPENDIX ## PETITIONER'S ANNEXURES: ANNEXURE I: TRUE COPY OF THE COMPLAINT C.M.P.NO.5852/2011 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT. ANNEXURE II: TRUE COPY OF THE DEPOSITION OF CW 1 IN C.M.P.NO.5852/2011 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, CHALAKUDY. ANNEXURE II(A): TRUE COPY OF THE DEPOSITION OF CW 2 IN C.M.P.NO.5852/2011 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, CHALAKUDY. ANNEXURE II(B): TRUE COPY OF THE DEPOSITION OF CW 3 IN C.M.P.NO.5852/2011 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, CHALAKUDY. ANNEXURE III: TRUE COPY OF THE ORDER DATED 6.1.2012 IN C.M.P.NO.5852/2011 ON THE FILE OF THE LEARNED JUDICIAL FIRST CLASS MAGISTRATE COURT, CHALAKUDY. //TRUE COPY// P.A. TO JUDGE **C.T. RAVIKUMAR, J. -------------------------------------------CRL.R.P No.816 OF 2012 --------------------------------------------** Dated this the 23[rd] day of May, 2012 ## **ORDER** This revision petition is filed against the order dated 6.1.2012 in C.M.P.No.5852 of 2011 passed by the Judicial First Class Magistrate Court, Chalakudy refusing to take cognizance against the second respondent. The said complaint was filed alleging commission of offence under sections 447, 427, 294(b), 506(1) read with section 34 of the Indian Penal Code against respondents 1 and 2 herein viz., respondents 1 and 2 therein. Earlier, the petitioner filed a complaint on 20.1.2011 before the learned Judicial First Class Magistrate Court, Chalakudy as C.M.P.No.1015 of 2011. It was forwarded for investigation under section 156(3) of the Code of Criminal Procedure pursuant to which crime No.230 of 2011 of Chalakudy Police Station was registered. On investigation, a report was filed to the effect that the case is false. Thereupon, the complaint in question was filed as a **Crl.R.P.816/12** 2 protest complaint and it was taken on file. The learned Magistrate took sworn statements of CWs 1 to 3. After considering the statements of the petitioner given as CW 1 and of the eye witnesses CWs 2 and 3 and also Annexure-I protest complaint, the learned Magistrate took cognizance under section 506(1) and 294(b) against the 1[st] respondent but, refused to take cognizance of any offence against the second respondent herein. 2. I have heard the learned counsel for the petitioner and the learned Public Prosecutor. The learned counsel for the petitioner contends that the refusal to take cognizance on any offence against the second respondent by the learned Magistrate is highly illegal and improper and warrants interference. Taking cognizance means judicial application of mind by the Magistrate to the facts mentioned in the complaint for taking further action. The Magistrate is obliged to consider and satisfy whether there is prima facie evidence viz., evidence sufficient to establish a fact or to raise a presumption of truth of facts if unrebutted. At that stage, the Magistrate concerned only **Crl.R.P.816/12** 3 applies the mind to see whether there is a prima facie case. As held by the Hon'ble Apex Court in **Kishun Singh v. State of Bihar** reported in **(1993) 2 SCC 16** , at the stage of taking cognizance, only prima facie case is to be seen and cognizance is taken of the offence and not of the accused. In this case, evidently, while applying the mind to the facts mentioned in the complaint with a view to decide on the further action, the learned Magistrate got satisfied on the existence of a prima facie case only against the first respondent and not against the second respondent. There can be no doubt that allegation of facts constituting an offence is necessary for taking congnizance of an offence. Having perused the complaint and the statements of CW 1 to CW 3 produced by the revision petitioner, I am of the considered view that the action in not taking cognizance of any offence against the second respondent, the wife of the first accused cannot be said to be infected with illegality or any impropriety as there was no sufficient ground for proceeding against the second respondent. In short, I do not find any illegality or impropriety in the order dated 6.1.2012 in C.M.P.No.5852 of 2011 on the file of the Judicial First Class **Crl.R.P.816/12** 4 Magistrate Court, Chalakudy that invites interference by exercising the revisional power of this Court. Accordingly, this criminal revision petition is dismissed. **C.T. RAVIKUMAR (Judge)** **spc/** **Crl.R.P.816/12** 5 **C.T. RAVIKUMAR, J.** **JUDGMENT September, 2010** # **Crl.R.P.816/12** 6