Kuruvila @ Appachan and others v. Anil Kumar and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** ## **THURSDAY, THE 3RD DAY OF JULY 2014/12TH ASHADHA, 1936** ## **Crl.MC.No. 1233 of 2012 () ---------------------------** ## **AGAINST THE ORDER/JUDGMENT IN CC 798/2011 of J.M.F.C – I,VAIKOM.** **PETITIONER(S)/ACCUSED NOS.1 TO 3 :** **--------------------------------** **1. KURUVILA @ APPACHAN, OZHAVOORMANAYIL HOUSE, CHEMMANATHUKARA MURI, VAIKOM VILLAGE, VAIKOM TALUK.** **2. MINI, W/O.KURUVILA @ APPACHAN, OZHAVOORMANAYIL HOUSE, CHEMMANATHUKARA MURI, VAIKOM VILLAGE, VAIKOM TALUK.** **3. KURUVILA, S/O.KURUVILA @ APPACHAN, OZHAVOORMANAYIL HOUSE, CHEMMANATHUKARA MURI, VAIKOM VILLAGE, VAIKOM TALUK.** **BY ADV. SRI.M.REVIKRISHNAN.** ## **RESPONDENT(S)/COMPLAINANT AND STATE:** **-----------------------------------** **1. ANILKUMAR, S/O.SUKUMARAN, ASWATHY BHAVAN, CHEMMANTHUKARA MURI, VAIKOM VILLAGE, VAIKOM TALUK.** **2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM – 682 031.** **R1 BY ADV. SRI.S.RADHAKRISHNAN SRI.S.RAJ MOHAN SMT.LATHIKA MOHAN KUM.K.SARITHA (PALLOM) R2 BY PUBLIC PROSECUTOR SRI.JUSTIN JACOB.** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 03-07-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No. 1233 of 2012 ()** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS :** **ANNEXURE A TRUE COPY OF THE PRIVATE/PROTEST COMPLAINT PREFERRED BY THE IST RESPONDENT AGAINST THE ACCUSED IN CC.798/2011 ON THE FILE OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, VAIKOM. ANNEXURE B TRUE COPY OF THE PROCEEDINGS SHEET IN CC.798/2011 OF THE COURT OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I,VAIKOM. ANNEXURE C TRUE COPY OF THE PRIVATE COMPLAINT DATED 29/6/2010 PREFERRED BY THE IST RESPONDENT BEFORE THE COURT OF JUDICIAL FIRST CLASS MAGISTRATE, VAIKOM. ANNEXURE D TRUE COPY OF THE REFER REPORT IN CRIME NO.816/2010 OF VAIKOM POLICE STATION. ANNEXURE E TRUE COPY OF THE FINAL REPORT IN CRIME NO.759/2010 OF VAIKOM POLICE STATION.** **RESPONDENTS' EXHIBITS : NIL.** **//TRUE COPY//** **P.A TO JUDGE** **amk** ## **A.HARIPRASAD, J.** ## **-----------------------------------------------Crl.M.C No.1233 of 2012** **-----------------------------------------------Dated this the 3[rd] day of July, 2014.** ## **O R D E R** Accused 1 to 3 in C.C No.798/2011 on the file of the Judicial First Class Magistrate Court - I, Vaikom, who have been called up to answer charges for offences punishable under Sections 341, 352 and 506(i) r/w Section 34 I.P.C are before this Court with a petition under Section 482 Cr.P.C. They are arraigned as accused in a protest complaint filed by the defacto complainant against whom the police had filed a refer report in Crime No.816/2010 of Vaikom Police Station. 2. Short facts are as follows : On 16-06-2010 at about 4.00 p.m, the petitioners allegedly trespassed into the property of the complainant and indulged in illegal construction. The complainant obstructed the same. At that time, the accused allegedly wrongfully restrained the complainant and the first accused assaulted him. Second accused criminally intimidated the complainant and third accused used **Crl.M.C No.1233 of 2012 2** obscene words against the complainant. The copy of the protest complaint is Annexure A to this petition. 3. Originally, the complainant approached the police alleging certain offences against the petitioners. His grievance is that police did not take any action in that matter. Therefore, he filed Annexure C complaint before the lower court alleging offences punishable under Sections 341, 351, 506(ii), 447 and 294(b) I.P.C. Learned Magistrate forwarded the complaint for investigation to police under Section 156(3) Cr.P.C. After investigation, police filed Annexure D final report, wherein it is stated that the allegations in the complaint are false. In compliance of the direction of the Supreme Court in _**Bhagwant Singh v. Commissioner of Police and Another (A.I.R 1985 S.C 1285)**_ the court issued notice to the defacto complainant showing the fact that his complaint had been referred by police. On receiving the notice, he appeared before the court and filed **Crl.M.C No.1233 of 2012 3** Annexure A complaint. Learned Magistrate as per order dated 14-10-2011 took the protest complaint on file and issued process to the accused calling them up to answer charges under Sections 341, 352, 506(ii) r/w Section 34 I.P.C. This order is challenged on this proceedings. 4. Heard the learned counsel for the petitioners, learned counsel for the first respondent and the learned Public Prosecutor. 5. Learned counsel for the petitioners submitted that the order passed by the learned Magistrate does not conform to the judicial standards in a matter where cognizance is taken for certain offences only. It is pertinent to note that the offences alleged are punishable under Sections 341, 352, 447, 294(d) and 506(ii) r/w Section 34 I.P.C. However, the learned Magistrate has taken cognizance only for offences punishable under Sections 341, 352, 506(i) r/w Section 34 I.P.C. It is settled law **Crl.M.C No.1233 of 2012 4** that insofar as the other offences for which cognizance have not been taken is concerned, the order amounts to dismissal of the complaint. Learned counsel for the petitioners submitted that there cannot be a dispute that order dismissing a complaint should show reasons for the dismissal. In other words, if the Magistrate, in a case where multiple offences are alleged, decides to take cognizance for some of the offences alleged and not to take cognizance in respect of other offences, it could be done only by a speaking order. The order under challenge reads as follows : _“ Complainant present. Taken on file as C.C 798/11 for the offence u/s 341, 352, 506(i) and 34 I.P.C. Summons to accused to 13-1-12.”_ 6. Learned counsel for the petitioners relied on a decision in _**Pepsi Foods Ltd. v. Special Judicial Magistrate ((1998)5 SCC 749)**_ to contend that summoning an accused in a **Crl.M.C No.1233 of 2012 5** criminal case is a serious matter and criminal law cannot be set in motion as a matter of course. It is also stated in the decision that 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. It is submitted that the impugned order does not show neither application of mind nor applying the correct principles of law. It is beyond any pale of dispute that the order taking cognizance normally need not be an elaborate one. However, in this case it amounts to dismissal of a complaint in respect of certain offences. Therefore, it should have been proper for the Magistrate to state enough reasons to show that he had applied mind before taking cognizance. 7. Learned counsel for the petitioners contended that this is not a case and a counter case. Learned counsel contended that in respect of one criminal transaction, there are two versions projected in the protest complaint implicating persons other than **Crl.M.C No.1233 of 2012 6** the complainant in the original case. That also makes a marked difference to contend that there should have been a speaking order in this matter. 8. Learned counsel for the petitioners relied on a decision in _**Parameswaran Nair v. Surendran (2009(1) K.L.T 794)**_ contended that the learned Magistrate should have considered the final reports, documents and statements produced along with the same while deciding as to whether cognizance is to be taken or not. It is true that the learned Magistrate is not a prisoner of the final report filed by the police and he can independently take a decision as to whether to proceed with the case or terminate the criminal proceedings by accepting the negative final report submitted by the police. But when he decides to proceed with the case with respect to certain offences alleged and decides not to proceed with the rest of the offences alleged, then certainly it becomes incumbent on him to peruse **Crl.M.C No.1233 of 2012 7** the materials. This contention of the learned counsel for the petitioner is legally sustainable, because the interest of the absentee accused also should be considered by the court while taking a decision by applying mind to the materials before him. The impugned order does not show any reason and it is absolutely bereft of the standards required under law. 9. There are catena of decisions on the point that a revision could be filed challenging the order taking cognizance. Learned counsel for the petitioner would submit that the illegality committed by the court below can be rectified by this court by exercising jurisdiction under Section 482 Cr.P.C. The powers of the High Court to revise an order of a criminal court provided by Section 401 Cr.P.C is very wide and it can be exercised if an illegality comes to the notice of the High Court in a proceeding under Section 482 Cr.P.C as well. Therefore, by invoking power under Section 401 Cr.P.C also this court can **Crl.M.C No.1233 of 2012 8** direct the court below to undo the mistake committed. In the result, Crl.M.C is allowed. The impugned order is set aside. The matter is remitted back to the trial court for fresh consideration on the basis of the guidelines in _**Parameswaran Nair v. Surendran (2009(1) K.L.T 794)**_ . The complainant shall appear before the court below on 4[th] August, 2014. All pending interlocutory applications will stand dismissed. **A.HARIPRASAD, JUDGE.** amk