Lijo Thomas v. State of Kerala and Beena Charley

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 25TH DAY OF NOVEMBER 2020 / 4TH AGRAHAYANA, 1942** ## **Crl.MC.No.3937 OF 2015** **AGAINST THE ORDER/JUDGMENT IN CRMP 1439/2014 OF DISTRICT COURT & SESSIONS COURT,KOTTAYAM** **CRIME NO.186/2014 OF Erattupettah Police Station , Kottayam** ## **PETITIONER/S:** **LIJO THOMAS AGED 37 YEARS S/O. THOMAS, PLANTHOTTATHIL VEEDU, POONJAR, THEKKEKKARA, KOTTAYAM.** **BY ADVS. SRI.SHABU SREEDHARAN SRI.V.N.MOHAN RAJ SMT.RESHMA ABDUL RASHEED SRI.S.VIJAYAN** ## **RESPONDENT/S:** **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2 BEENA CHARLEY AGED 35 YEARS D/O. MARGARATE CHARLEY LOPPUS, BAINA COTTAGE, MUNGODE, OTTOOR P.O., CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM-695144.** **R2 BY ADV. SRI.M.R.SARIN** ## **OTHER PRESENT:** ## **SRI.SANTHOSH PETER, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 25.11.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No.3937 OF 2015** **2** ## **ALEXANDER THOMAS, J.** **= = = = = = = = = = = = = = = = = Crl.M.C. No.3937 of 2015** **- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -** Dated this the 25[th] day of November, 2020 ## **O R D E R** The prayer in the aforementioned Criminal Miscellaneous case filed under Sec. 482 of the Cr.P.C. is as follows : _“....to quash the Annexure-7 protest complaint, the Annexure-11 order and the further proceedings thereon in Crl.M.P.No.1439/2014 of the Principal Sessions Court, Kottayam so as to secure the ends of justice.”_ 2. Heard Sri.Shabu Sreedharan, learned counsel appearing for the petitioner/accused. Sri.Saigi Jacob Palatty, learned Public Prosecutor appearing for R1-State of Kerala and Sri.M.R.Sarin Panicker, learned counsel appearing for contesting respondent No.2 (lady defacto complainant). 3. The case set up by the petitioner in the above Criminal Miscellaneous case is broadly as follows : _That the petitioner is the accused in Crl.M.P.No.1439/2014 of the Principal Sessions Court, Kottayam. The 2[nd] respondent is his former wife who filed the said Crl MP against the petitioner for the offence u/s 7 & 8 of the Protection of Children from Sexual Offences Act (POCSO Act), 2012 and u/s.453, 420 & 34 IPC. The case of the 2[nd] respondent is that the petitioner obtained the custody of his minor son Libin from her on 20.12.2013 and returned Libin on 3.1.2014. She took the child to the Mission Hospital, Varkala on 6.1.2014 with the allegation of sexual assault upon the child by the petitioner_ **Crl.MC.No.3937 OF 2015** **3** _during the period of custody of the child with him. Subsequently, the petitioner gave Annexure-4 statement to the Kallambalam Police resulting in the registering of Crime No.33/2014 for the offence u/s 7 & 8 of the POCSO Act against the petitioner. The said crime got transferred to the Kaduthuruthy Police Station and then to the Erattupetta Police Station where Annexure- 5 FIR got registered. The police conducted a detailed investigation and found the case to be false and accordingly they filed Annexure-6 final report referring the case. Thereupon, the 2[nd] respondent filed Annexure-7 protest complaint before the Sessions Court, Kottayam. Now the Sessions Court passed Annexure-11 order taking cognizance of the offence and issuing summons to the petitioner for enquiry u/s.202 Cr.PC. The Annexure-7 protest complaint, the Annexure-11 order and the further proceedings thereon are highly unsustainable and totally unwarranted._ 4. It is in the light of these averments and contentions that the petitioner has filed the instant Crl.M.C. under Sec.482 of the Cr.P.C. on 26.6.2015 with the aforementioned prayer. 5. Shorn off all the unnecessary factual details. The core of the case is that the Sessions court, Kottayam has now passed the impugned Annexure-A11 order dated 4.4.2015 on CMP No.1439/2014 which is protest complaint proceedings set in motion by the 2[nd] respondent-defacto complainant after the submission of the refer report in this case by the police. The impugned Annexure-A11 order dated 4.4.2015 rendered by the Sessions court, Kottayam on CMP No.1439/2014 (arising out of Crime No.186/2014 of Erattupettah Police Station) reads as follows : _“Heard. Taken cognizance of the offence compliance the summons to the accused for the purpose of the enquiry under Section 202 Cr.P.C.”_ **Crl.MC.No.3937 OF 2015** **4** 6. The impugned order at Annexure-A11 order is indeed strange and cannot be countenanced in law. The Sessions court takes the stand that it is taking cognizance of the offences alleged in the protest complaint and issuing summons to the accused for the limited purpose of conducting enquiry under Sec. 202 of the Cr.P.C. The Sessions court have exercise its discretion either to conduct enquiry both under Sec.200 of the Cr.P.C. as well as Sec.202 of the Cr.P.C. and then could have taken a considered decision as to whether or not cognizance of the offence alleged in the protest complaint is to be taken or if it is otherwise justifiable, the Sessions court could have dispensed with the enquiry at Sec.202 of the Cr.P.C. stage and could have after conducting enquiry at Sec.200 Cr.P.C. stage, could have taken a decision as to whether or not cognizance of the offences alleged in the complaint is to be taken. But the procedure adopted by the learned Sessions Court in this case is quite strange for the simple reason that what is ordered by the learned Sessions Court at Annexure-A11 is that he is taking cognizance of the offence in the complaint and issuing summons to the accused for the purpose of conducting enquiry under Sec.202 of the Cr.P.C. Such a course of action is impossible in law and cannot be countenanced. Hence, the impugned order at Annexure-A11 would warrant interdiction on that sole ground. 7. This Court while entertaining this Crl.M.C., has passed interim order dated 25.11.2015 on Crl.M.A. No.6136/2015 in the instant Crl.M.C. **Crl.MC.No.3937 OF 2015** **5** ## No.3937/2015, which reads as follows : _“ The report submitted by the learned Additional Sessions Judge I, Kottayam, before whom the matter is pending shows that the cognizance order passed by the learned Sessions Judge on 4.4.2015 is not legal and proper. The report shows that cognizance was taken by the learned Sessions Judge on the complaint after conducting necessary enquiry. The report further shows that even after such cognizance, the learned Sessions Judge ordered summons to the accused for the purpose of enquiry under Section 202 of Cr.P.C. Once cognizance is taken, there is no question of conducting further enquiry under Section 202 of Cr.P.C. So also, there is no question of issuing summons to the accused for the purpose of enquiry under Section 202 of Cr.P.C. Such a procedure is unheard of. Anyway, the report shows that this legal issue regarding cognizance, and the legality of the order of cognizance, is now being heard by the learned trial Judge. The 2[nd] respondent will file her statement on these aspects. Post after two weeks. Crl.M.A.No.6136 of 2015_ _Heard both sides. The question of granting stay will be considered after decision is taken by the trial court regarding the legal issue involved in the matter._ _Post along with Crl.M.C.”_ 8. At the interlocutory stage of this Crl.M.C., this Court has only passed the said interim order, making a _prima facie_ observation that the said procedure adopted by the learned Sessions court in rendering the impugned order at Annexure-A11 dated 4.4.2015 is unheard of and is against the statutory procedure. This Court has not set aside the impugned order at Annexure-A11 herein as obviously the case was then at interlocutory stage and the observations made in the said interim order were only _prima facie_ in nature. Probably, presuming that the said observation made by this Court is a final order and would amount to setting aside of Annexure-A11 order dated 4.4.2015, the Sessions court, Kottayam has passed a subsequent order dated 7.12.2015 on CMP No.1439/2014, which reads as follows : _“Read proceedings dated 4.4.2015 passed by my learned Predecessor. The Hon'ble High Court by order dated 25.11.2015 in Crl.M.C. No.3937/2015 & Crl.M.A. No. 6136/2015, held that the cognizance order passed by the learned_ **Crl.MC.No.3937 OF 2015** **6** _Sessions Judge on 4.4.2015 is not legal and proper._ 2. _Heard the learned counsel for the complainant on the materials available for proceeding against the accused. Perused the sworn statements given by PWs 1 to 7 and Exs.X1,X2 and P1. There are sufficient materials to proceed against the accused for the offence punishable under S.3(b) of POCSO Act. Hence, this Court is taking cognizance of the offence under S.3(b) of the POCSO Act against the accused._ _Addressed to the Principal Sessions Judge to assign Sessions number and issue summons to the accused. Return of summons 14.12.2015.”_ 9. The said order dated 7.12.2015 passed subsequently by the Sessions court, Kottayam on CMP No. 1439/2014 is illegal and ultravires for the simple reason that the said order even if it is assumed to be otherwise legal and proper would amount to reviewing the previously passed order at Annexure-A11 order dated 4.4.2015 and then subsequently passing the said order on 7.12.2015 inasmuch as this Court has not passed any final order setting aside the impugned order at Annexure-A11. It is trite that the criminal court is divested of any such power of review and the prohibition of review is engrafted in Sec. 364 of the Cr.P.C. Therefore, the subsequent order dated 7.12.2015 passed by the Sessions court, Kottayam on CMP No.1439/2014 is liable for interdiction on the sole ground that the said order would amount to reviewing their earlier Annexure-A11 order dated 4.4.2015 and then passing the subsequent order, which is impermissible and prohibited in law. 10. Accordingly, for the abovesaid reasons, it is ordered that the impugned Annexure-A11 order dated 4.12.2015 rendered by the Sessions court, Kottayam on CMP No. 1439/2014 as well as the subsequent order dated 7.12.2015 rendered by the Sessions court on CMP No.1439/2014 will **Crl.MC.No.3937 OF 2015** **7** stand set aside and quashed. The protest complaint filed by the 2[nd] respondent as per CMP No.1439/2014 will stand remitted to the Sessions court, Kottayam for consideration and decision afresh. That apart, the impugned orders hereinabove are also bad for the simple reason that the same does not disclose any application of judicial mind by the Sessions court as to whether the requisite parameters for setting in motion the protest complaint filed by the defacto complainant after submission of refer report by the police has been fulfilled in the instant case. 11. It is by now well settled by a series of rulings in cases as in _**Parameswaran Nair v. Surendran**_ [2009 (1) KLT 794] that after submission of the refer report in a case investigated by the police, the protest complaint filed at the instance of the defacto complainant could be acted upon, only if there are new materials which would clearly show miscarriage of justice on account of the refer report and such materials despite due diligence could not have been produced by the defacto complainant in the earlier proceedings etc. It _will_ be profitable to refer to para Nos. 11, 13 and 16 of _**Parameswaran Nair’s**_ case (supra) [2009 ## (1) KLT 794]. > _“11. When a final report is made under Sub Section 2 of Section 173 of the Code, after investigation pursuant to an order under Sub Section 3 of Section 156 of the Code by the Magistrate, that no offence is committed and that report is accepted by the Magistrate after notice to the complainant and drop the proceedings the legal effect could only be that the original complaint, based on which investigation was ordered under Sub Section 3 of Section 156, which is not effaced from the record is deemed to be dismissed._ > _13. Question then is what is the procedure to be followed by the Magistrate on receipt of the final report disclosing that no offence is committed. If the Magistrate is inclined not to take cognizance of the offence, the complainant is_ **Crl.MC.No.3937 OF 2015** **8** _entitled to a notice and opportunity to persuade the Magistrate to take cognizance. Apex court in_ _**Bhagwant Singh v. Commissioner of Police and another (AIR 1985 SC 1285)** considered this aspect and held._ _“But if the Magistrate decides that there is no sufficient ground for proceeding further and drops the proceeding or takes the view that though there is sufficient ground for proceeding against some, there is no sufficient ground for proceeding against others mentioned in the First Information Report, the informant would certainly be prejudiced because the First Information Report lodged by him would have failed of its purpose, wholly or in part. Moreover, when the interest of the informant in prompt and effective action being taken on the First Information Report lodged by him is clearly recognised by the provisions contained in sub-sec.(2) of S.154, sub-sec.(2) of S.157 and sub-sec. (2)(ii) of Section 173, it must be presumed that the informant would equally be interested in seeing that the Magistrate takes cognizance of the offence and issues process, because that would be culmination of the First Information Report lodged by him. There can, therefore, be no doubt that when, on a consideration of the report made by the officer in charge of a police station under sub section (2)(i) of S.173, the Magistrate is not inclined to take cognizance of the offence and issue process, the informant must be given an opportunity of being heard so that he can make his submissions to persuade the Magistrate to take cognizance of the offence and issue process. We are accordingly of the view that in a case where the Magistrate to whom a report is forwarded under sub sec.(2)(i) of S.173 decides not to take cognizance of the offence and to drop the proceeding or takes the view that there is no sufficient ground for proceeding against some of the persons mentioned in the First Information Report, the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report. It was urged before us on behalf of the respondents that if in such a case notice is required to be given to the informant, it might result in unnecessary delay on account of the difficulty of effecting service of the notice on the informant. But we do not think this can be regarded as a valid objection against the view we are taking, because in any case the action taken by the police on the First Information Report has to be communicated to the informant and a copy of the report has to be supplied to him under sub section (2)(i) of S.173 and if that be so, we do not see any reason why it should be difficult to serve notice of the consideration of the report on the informant. Moreover, in any event, the difficulty of service of notice on the informant cannot possibly provide any justification for depriving the informant of the opportunity of being heard at the time when the report is considered by the Magistrate.”_ ## _The legal position is reiterated in_ _**Gangadhar Janardan Mhatre v. State of Maharashtra (2004(7) SCC 768)** as follows._ _“7. Therefore, there is no shadow of doubt that the informant is entitled to a notice and an opportunity to be heard at the time of consideration of the report. This court further held that the position is different so far as an injured person or a relative of the deceased, who is not an informant, is concerned. They are not entitled to any notice. This court felt that the question relating to issue of notice and grant of opportunity as aforedescribed was of general importance and directed that copies of the judgment be sent to the High Courts in all the States so that the High Courts in their turn may circulate the same among the magistrate within their respective jurisdictions._ _16. If Magistrate finds that in spite of all the objections raised, the final report is to be accepted he can accept it and drop the proceeding. At that stage Magistrate can entertain a second complaint. But such a complaint will lie only if there was manifest error or manifest miscarriage of justice or new facts which the complainant had no knowledge of or with reasonable diligence could not have brought forward in the previous proceedings. The Magistrate cannot therefore ignore the final report altogether and consider only the protest complaint and the sworn statement of the witnesses recorded in that enquiry.”_ 12. Accordingly, the matter in relation to the protest complaint **Crl.MC.No.3937 OF 2015** **9** filed by the 2[nd] respondent at CMP No.1439/2014 will stand remitted to the Sessions court, Kottayam for consideration and decision afresh. The sessions court will issue notice of hearing to the counsel for the protest complainant (R2 herein) as well as to the learned Public Prosecutor and then may take into consideration the relevant aspects of the matter and may apply its judicial mind to determine the issue as to whether the necessary parameters for acting upon the protest complaint after the submission of the refer report has been fulfilled in this case and also taking note of the dictum laid down by this Court in decisions as in _**Parameswaran Nair’s**_ case (supra) [2009 (1) KLT 794]. Orders in that regard may be duly passed without much delay, preferably within a period of two months from the date of receipt of a certified copy of this order. 13. Registry will forward a copy of this order to the Sessions court, Kottayam, who is dealing with CMP No.1439/2014 for necessary information and further action. With these observations and directions, the above Criminal Miscellaneous case will stand finally disposed of. **Sd/ALEXANDER THOMAS JUDGE** SKS **Crl.MC.No.3937 OF 2015** **10** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** - **ANNEXURE P1 ANNEXURE 1- THE TRUE COPY OF THE COMPROMIS PETITION DATED 24-5-2013.** - **ANNEXURE P2 ANNEXURE 2- THE TRUE COPY OF THE OUTPATIENT RECORD FROM THE SIVAGIRI SREE NARAYANA MEDICAL MISSION HOSPITAL, VARKALA DATED 6- 1-2014.** - **ANNEXURE P3 ANNEXURE 3- THE TRUE COPYO THE SUMMARY SHEET FROM THE SAT HOSPITAL, THIRUVANANTHAPURAM DATED 10-1-2014.** - **ANNEXURE P4 ANNEXURE 4- THE TRUE COPY OF THE STATEMENT GIVEN BY THE 2ND RESPONDENT DATED 9-1-2014.** - **ANNEXURE P5 ANNEXURE 5- THE TRUE COPY OF THE FIR IN CRIME NO. 186/2014 DATED 11-2-2014.** - **ANNEXURE P6 ANNEXURE 6- THE TRUE COPY OF THE FINAL REPORT DATED 2-6-2014.** - **ANNEXURE P7 ANNEXURE 7- THE CERTIFIED COPY OF THE PROTEST COMPLAINT DATED 18-6-2014.** - **ANNEXURE P8 ANNEXURE 8- THE TRUE COPY OF THE DEPOSITION OF THE 2ND RESPONDENT (PW1) DATED 1-7-2014.** - **ANNEXURE P9 ANNEXURE 9- THE TRUE COPY OF THE DEPOSITIONS OF PWS 2 TO 4 DATED 17-7-2014.** - **ANNEXURE P10 ANNEXURE 10- THE TRUE COPY OF THE DEPOSITIONS OF PWS 5 TO 7 DATED 4-11-2014.** - **ANNEXURE P11 ANNEXURE 11- THE CERTIFIED COPYOF THE ORDER IN CRL MP 1439/2014 DATED 4-4-2015.**