John Abraham Tharayil v. State of Kerala and Prince George Varghese

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **FRIDAY, THE 16TH DAY OF AUGUST 2013/25TH SRAVANA, 1935** ## **Crl.MC.No. 2733 of 2013 ()** **--------------------------CRL.MP.5608/2008 NUMBERING THE COMPLAINT AS C.C. NO.834/2011 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, THIRUVALLA. ..........** **PETITIONER/ACCUSED:** **------------------------------------** **JOHN ABRAHAM THARAYIL, S/O. ABRAHAM, THARAYIL HOUSE, THRIKKANARVATTOM, KANAYANNUR, PACHALAM, ERNAKULAM, PIN:682 012.** **BY ADV. SRI.K.PAUL KURIAKOSE.** **RESPONDENTS/STATE AND COMPLAINANT:** **-----------------------------------------------------------------** **1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **2. PRINCE GEORGE VARGHESE,** **S/O. VARGHESE, KADAVIL HOUSE, NIRANAM MURI, PARUMALA, KADAPRA VILLAGE, THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT, PIN:689 626.** **R1 BY PUBLIC PROSECUTOR MR.ROY THOMAS.** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 23-07-2013, THE COURT ON 16-08-2013 PASSED THE FOLLOWING:** **rs.** ## **Crl.MC.No. 2733 of 2013** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:-** - **ANNEXURE A1: PHOTOSTAT COPY OF THE F.I. STATEMENT DATED 28.02.2008.** - **ANNEXURE A2: PHOTOSTAT COPY OF THE F.I.R DATED 29.02.2008. ANNEXURE A3: PHOTOSTAT TRUE COPY OF FINAL REPORT DATED 30.05.2008 OF THE SUB INSPECTOR OF POLICE, THIRUVALLA.** - **ANNEXURE A4: A TRUE PHOTOSTAT COPY OF THE PROCEEDINGS OF THE PRINCIPAL, PUSHPAGIRI MEDICAL COLLEGE, THIRUVALLA SUSPENDING THE 2ND RESPONDENT BEARING ORDER NO.PIMSRC/PRINC/096/08 DATED 26.03.2008.** - **ANNEXURE A5: PHOTOSTAT TRUE COPY OF THE REFER REPORT DATED 24.03.2008 OF THE THIRUVALLA POLICE.** - **ANNEXURE A6: A TRUE PHOTOSTAT COPY OF THE PROTEST COMPLAINT DATED 28.08.2008 FILED BY THE 2ND RESPONDENT BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, THIRUVALLA.** - **ANNEXURE A7: A TRUE PHOTOSTAT COPY OF THE SWORN STATEMENT DATED 04.11.2010 IN CRL.M.P.NO.5608 OF 2008, MADE BY THE 2ND RESPONDENT.** - **ANNEXURE A7(A): THE READABLE COPY OF ANNEXURE A-7.** - **ANNEXURE A8: CERTIFIED COPY OF ORDER DATED 23.12.2011 IN CRL.M.P.NO.5608/2008** ## **RESPONDENT'S ANNEXURES:-** **NIL.** ## **//TRUE COPY//** ## **P.S. TO JUDGE.** **rs.** ## P. BHAVADASAN, J. - - - - - - - - - - - - - - - - Crl.M.C. No. 2733 of 2013 - - - - - - - - - - - - - - - - Dated this the 16[th] day of August , 2013. ## ORDER On a freshers' day in Pushpagiri Medical College, Thiruvalla, on 27.2.2008 at 11.15 a.m., it is alleged that a group of students as a part of ragging harassed another group of students, among whom the petitioner also figured. The petitioner was assaulted and as a result of the injury suffered by him, he had to be hospitalized. Intimation had gone from the Hospital and his statement was recorded from the Hospital. Based on his statement, Crime No. 185 of 2008 was registered in Thiruvalla Police Station. Annexures A1 and A2 produced are the FIS and the FIR respectively. After investigation, final report was filed and cognizance of the offence was taken as C.C. 335 of 2008 by JFCM, Thiruvalla. It is also stated in the petition that disciplinary proceedings were initiated against the mischief mongers and action was taken against almost all of them. The second respondent, who was Crl.M.C.2733/2013. 2 one of the mischief mongers, on getting bail in Crime No.185 of 2008, as a retaliatory measure, filed a complaint alleging assault by the petitioner. On the basis of his statement, Crime No.213 of 2008 was registered before the Thiruvalla Police Station. After investigation, the investigating officer found the allegations to be totally false and filed a refer report. On getting notice of the refer report so filed by the investigating officer, the second respondent before this court filed a protest complaint as Crl.M.P. No.5608 of 2008. The court below, after following the necessary procedure, took cognizance on the complaint and issued summons to the petitioner. 2. The petitioner assails the said act of the JFCM Court, Thiruvalla. The grievance of the petitioner is that taking of cognizance on the protest complaint, without adverting to the materials which resulted in a refer report being filed by the police and without application of mind, by the learned Magistrate, is illegal. It was indeed a mechanical Crl.M.C.2733/2013. 3 process to take cognizance on the protest complaint and the learned Magistrate must be satisfied, according to the learned counsel for the petitioner, that there is some infirmity in the investigation done by the police which has caused prejudice to the victim. In the case on hand, Annexure A8, the order taking cognizance of offence and issuance of summons to the petitioner, does not reflect the above aspect and therefore, the order is bad. For the above proposition, learned counsel for the petitioner relied on the decisions reported in S.W.Palanitkar v. State of Bihar ((2002) 1 SCC 241), Mahesh Chand v. B. Janardhan Reddy ((2003) 1 SCC 734) and Parameswaran Nair v. Surendran (2009(1) K.L.T. 794). 3. In the decision reported in S.W.Palanitkar v. State of Bihar ((2002) 1 SCC 241), the question as to what is meant by sufficient ground occurring in Section 203 of the Code of Criminal Procedure came up for consideration. Construing Sections 200 to 204 of the Cr.P.C., the Apex Court had Crl.M.C.2733/2013. 4 occasion to observe that 'sufficient ground' means that the prima facie case is made out. It is clarified by the Apex Court that it does not mean that materials to warrant a conviction should be present at that stage of the proceedings. It is sufficient if the court entertains a feeling that a prima facie case is made out against the accused to issue summons. 4. In the decision reported in Mahesh Chand v. B. Janardhan Reddy ((2003) 1 SCC 734), the question as to when a second complaint was possible was considered. The decision went on to hold that though a second complaint is not barred by the provisions of the Cr.P.C., it is not an automatic right that accrues to the person concerned and the second complaint lies in certain circumstances only. The Apex Court clarified that a second complaint on the same set of facts lies only in exceptional circumstances, namely when the previous order was passed on an incomplete record and on the misunderstanding of the nature of the complaint or it was Crl.M.C.2733/2013. 5 manifestly absurd or unjust or where new facts which could not, with reasonable diligence, have been brought on record in the previous proceedings, have been adduced. 5. In the decision reported in Parameswaran Nair v. Surendran (2009(1) K.L.T. 794), almost the same issue was considered and this court observed the manner of taking cognizance by the learned Magistrate under Section 190 of Cr.P.C. This court went on to notice that even assuming that a refer report is filed by the police, it was not incumbent upon the court to accept the same and the court can ignore the refer report and take cognizance of the complaint. The court also observed that protest complaint filed is not a second complaint. It is only an objection to the refer report and there is no harm in taking cognizance of the refer report, if circumstances justify the said action. It was observed as follows: Crl.M.C.2733/2013. 6 “18. When the Magistrate issue notice to the complainant on receipt of the final report and grants opportunity to the complainant to show why cognizance of the offence is to be taken and the complainant files a protest complaint, it is to be treated only as his objections to the final report, stating his reasons why the report cannot be accepted. If the Magistrate records his statement and that of the witnesses and decides to take cognizance of the offence, after considering all the materials including the final report made by the police under sub-s.(2) of S.173, it is advisable for the Magistrate to record that the final report is not accepted and on the entire materials he is of the opinion that there is ground to proceed and issue summons under S.204 of Code of Criminal Procedure. But the fact that no specific order was recorded that final report is not accepted or fact that the decision to take cognizance of the offence and issue process was recorded in the protest complaint, by themselves are not fatal, if the records show that Magistrate has considered all the relevant materials and applied his mind. If after complying these procedures, an order not to take cognizance is passed by the Magistrate, then a second complaint will lie, only if there was any manifest error or Crl.M.C.2733/2013. 7 manifest miscarriage of justice in the previous order or the complainant relies on new facts or materials which was not to his knowledge or with reasonable diligence could not have brought forward in the previous proceedings. 19. The order passed by the learned Magistrate is to be considered in the light of the aforesaid principles. The order is blank on whether the decision to take cognizance and issue summons was taken on the materials available in the final report made under S.173 (2) or on the materials made available by the complainant in the inquiry under S. 200. The order makes it clear that the learned Magistrate has not considered the question on the proper perspective. In such circumstances, the order can only be set aside and the matter remanded for fresh consideration in accordance with law.” 6. One thing is clear that a protest complaint is not a second complaint. In fact the Cr.P.C. does not envisage a protest complaint at all. It is a creation of judicial precedents. One should also notice that by virtue of filing a Crl.M.C.2733/2013. 8 report under Section 173 of the Code of Criminal Procedure, there is no merger of the complaint in the final report and the complaint retains its character. When notice is issued on a refer report to the defacto complainant, he files a protest complaint, it is only an extension of the complaint already filed before court and cannot be treated as a new complaint. 7. There can be no dispute regarding the fact that the learned Magistrate concerned is empowered to ignore the refer report or even to accept the same and then again on a protest complaint filed to take cognizance and follow the procedures under Sections 200 to 204 Cr.P.C. The mere filing of a refer report does not mean that a court cannot take cognizance on an original complaint and the protest complaint as already noticed is only an extension of the original complaint. Going by the decision relied on by the petitioner reported in Mahesh Chand v. B. Janardhan Reddy ((2003) 1 SCC 734), there is no taboo for filing a second complaint, but Crl.M.C.2733/2013. 9 it only lies under certain exceptional circumstances. 8. It is well settled by now that if the Magistrate dealing with the complaint is satisfied that there are sufficient grounds for proceeding with the matter after following the procedures contemplated under Section 200 to 203 Cr.P.C., he can issue process. What is stated in Section 204 is “ sufficient grounds for proceeding”. That means, the materials made available at the stage of Sections 200 to 203, if according to the learned Magistrate, show a prima facie case, that would be sufficient to issue process. It is not necessary for the Magistrate at that point of time to analyse the evidence before him to ascertain whether if uncontroverted conviction is possible. 9. Of course, learned Magistrate cannot ignore the refer report and it should also be seen from the records that he has either accepted or rejected the refer report and proceeded further. In the decision reported in Parameswaran Crl.M.C.2733/2013. 10 Nair v. Surendran (2009(1) K.L.T. 794), the facts of the case show that there was no indication as to what had actually been done by the Magistrate when the refer report was filed or in other words whether the refer report has been accepted or rejected. This court found that cognizance had been taken on the protest complaint. Under those circumstances, it was held that there was non-application of mind by the learned Magistrate in taking cognizance on a protest complaint. 10. The contention that materials collected by the investigating officer which resulted in the filing of the refer report must be taken into consideration at the time of taking cognizance on a private complaint cannot be accepted. Nor can there be a comparison of the evidence collected by the investigating officer and the materials collected by the Magistrate during the enquiry done under Sections 200 to 204 Cr.P.C. Both are independent and distinct. That is the reason why even after a refer report is filed and accepted, Crl.M.C.2733/2013. 11 when a protest complaint is filed, the learned Magistrate is empowered to take cognizance on the same. Again, one may recollect here that the protest complaint is not a second complaint, and it is only a reminder and it is only an extension of the first complaint. 11. In the case on hand, Annexure A8 order shows that the learned Magistrate had applied his mind and has come to the conclusion that there are prima facie materials to show the commission of offence under Section 323 of I.P.C. The said formation of opinion by the court below on the materials cannot be compared with the materials collected during investigation and contend for the position that in the light of the refer report, summons ought not to have been issued. 12. The contention that there is no application of mind in passing Annexure A8 order cannot be accepted. It is also well settled that a detailed order need not be passed on Crl.M.C.2733/2013. 12 the point of issuing summons under Section 204 Cr.P.C. On the other hand, if the learned Magistrate decides to dismiss the complaint under Section 203, he has to give reasons for doing so. Viewed in the light of the well settled principles of law and the provisions of Cr.P.C., the contention that Annexure A8 order is bad cannot be countenanced. There is no merit in this petition and it is accordingly dismissed. P. BHAVADASAN, JUDGE sb.