Madhusoodhanan Pillai M.R. v. State of Kerala and P. K. Vasudevan

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE B.KEMAL PASHA** **MONDAY, THE 4TH DAY OF DECEMBER 2017/13TH AGRAHAYANA, 1939** **Crl.MC.No. 7041 of 2014 (E)** **---------------------------** **C.P. No.38/2013 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II, PATHANAMTHITTA CRIME NO.295/2009 OF KONNI POLICE STATION, PATHANAMTHITTA** **PETITIONER/SOLE ACCUSED:** **------------------------** **MADHUSOODHANAN PILLAI.M.R., AGED 48, S/O. RAMAN PILLAI, MARUTHIMOOTTIL VFEEDU, KONNI, ARUVAPPULAM VILLAGE, ARUVAPPULAM P.O., PATHANAMTHITTA DISTRICT - 689 691.** **BY ADVS.SRI.V.PHILIP MATHEW** **SRI.GIBI.C.GEORGE SRI.N.K.THANKACHAN** **RESPONDENTS/DEFACTO COMPLAINANT AND STATE:** **------------------------------------------** **1. STATE OF KERALA, RESPRESNETED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031.** **2. P.K.VASUDEVAN, S/O KARUTHA KUNJU, PARAMESWARATHU MELETHIL, KONNI, ARUVAPPULAM VILLAGE, ARUVAPPULAM P.O., PATHANAMTHITTA DISTRICT - 689 691.** **R2 BY ADVS. SRI.K.S.SIVA KUMAR** **SRI.P.SREEKUMAR R1 BY PUBLIC PROSECUTOR SRI.RAMESH CHAND** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 04-12-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **Crl.MC.No. 7041 of 2014 ()** ## **---------------------------** ## **APPENDIX** **PETITIONER(S)' ANNEXURES -------------------------** |**ANNEXURE 1**|**:**|**COPY OF C.M.P.NO.1167/09 FILED BY THE 2ND**| |---|---|---| |||**RESPONDENT BEFORE THE JUDICIAL FIRST CLASS**| |||**MAGISTRATE COURT-II, PATHANAMTHITTA.**| |**ANNEXURE 2**|**:**|**COPY OF F.I.R IN CRIME NO.295/2009 OF KONNI POLICE**| |||**STATION.**| |**ANNEXURE 3**|**:**|**COPY OF REFER CHARGE SHEET IN CRIME NO.295/09 OF**| |||**KONNI POLICE STATION.**| |**ANNEXURE 4**|**:**|**COPY OF PROTEST COMPLAINT (C.M.P 7758/2010) FILED**| |||**BY THE 2ND RESPONDENT BEFORE THE JUDICIAL FIRST**| |||**CLASS MAGISTRATE COURT-II, PATHANAMTHITTA.**| |**ANNEXURE 5**|**:**|**COPY OF THE SWORN STATEMENT OF THE 2ND RESPONDENT.**| |**ANNEXURE 6**|**:**|**COPY OF STATEMENT OF WITNESS NO.2 (GOPINATHAN NAIR)**| |**ANNEXURE 7**|**:**|**COPY OF STATEMENT OF WITNESS NO.3(KRISHNAN).**| |**ANNEXURE 8**|**:**|**COPY OF STATEMENT OF WITNESS (SANTHA-WIFE OF 2ND**| |||**RESPONDENT).**| |**ANNEXURE 9**|**:**|**COPY OF ORDER DATED 07.08.2013 PASSED BY THE**| |||**JUDICIAL FIRST CLASS MAGISTRATE COURT-II,**| |||**PATHANAMTHITTA.**| |**ANNEXURE 10 **|**:**|**COPY OF THE COMMUNITY CERTIFICATE DATED 15.03.2013**| |||**REGARDING THE 2ND RESPONDENT.**| |**ANNEXURE 11 **|**:**|**COPY OF THE CERTIFICATE DATED 19.04.2013 REGARDING**| |||**THE PETITIONER.**| |**ANNEXURE 12:**||**COPY OF JUDGMENT DATED 30.11.2010 PASSED BY THE**| |||**MUNSIFF COURT, PATHANAMTHITTA IN O.S NO.66/2009.**| |**RESPONDENT(S)'**||**ANNEXURES**<br>**-**<br>**NIL**| |**------------------------**||| **//TRUE COPY//** **P.A. TO JUDGE** ww ## **[CR]** ## **B. KEMAL PASHA, J.** ======================== CRL.M.C.No. 7041 of 2014 ========================= Dated this the 4[th] day of December, 2017 ## **O R D E R** Annexure 9 order passed by the Judicial First Class Magistrate's Court-II, Pathanamthitta in C.M.P. No. 7758/2010 is under challenge. 2. A protest complaint was filed by the complainant before the court below, alleging offences punishable under Sections 3(1) (v), (x), (xiv) and (xv) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and Section 294(b) of Indian Penal Code. The learned Magistrate has taken cognizance of the aforesaid offences and the case has been taken on file as C.P. No.38/2013. According to the learned counsel for the petitioner, the learned Magistrate ought not to have taken cognizance of CRL.M.C.No. 7041 of 2014 -: 2 :- the offence, when the special court only was empowered to take cognizance of the offences within the meaning of Section 14 of the Act. 3. Presently, after the amendment to Section 14 of the Act, the 2[nd] proviso has been incorporated which enables the special court to take cognizance of the offences directly without committal. When the said provision was conspicuously absent in Section 14, the matter was governed by the decision of the Apex Court in _**Gangula Ashok v. State of A.P.**_ [2000 (1) KLT 609 (SC)]. In that decision also, it was emphatically held that the special court has to take cognizance of the offences on committal. Therefore, it is evident that the power to take cognizance is vested with the Special Court alone. 4. Here, in this particular case, through Annexure 9 it seems that the court below has taken cognizance of the offences punishable under Sections 3(1) (v), (x), (xiv) and CRL.M.C.No. 7041 of 2014 -: 3 :- (xv) of the Act. 5. Initially an information was passed on to the police, which culminated in a crime. Thereafter, the police on investigation referred the matter as false. It was after that, the protest complaint has been filed. 6. The facts show that there was an attempt from the part of the defacto complainant to widen a pathway through the property of the petitioner, which was obstructed by the petitioner. Consequently there was a civil suit between the parties and the suit has been decreed in favour of the petitioner, vide Annexure 12 Judgment. According to the learned counsel for the petitioner, the attempt of the defacto complainant is to snatch away the pathway at any cost from the petitioner and that is why, presently he has been trapped in the serious criminal offences under the Special Act. 7. It seems that the court below by taking CRL.M.C.No. 7041 of 2014 -: 4 :- cognizance of the offences has bypassed the powers empowered on the Court under Section 202 Cr.P.C. The learned Magistrate ought to have recorded the statements of all the witnesses and thereafter, numbered it as committal proceedings, in case there were grounds to proceed with. If no grounds were made out to proceed with, it was open to the Magistrate to apply Section 203 of Cr.P.C. and dismiss the complaint. In case any grounds to proceed with are made out, the course open to the Magistrate is not to take cognizance of the offences; whereas, the Magistrate has to register the proceedings as committal proceedings and then to commit the case to the special court. 8. Presently, after the amendment, such a course of action is not required and the Magistrates are not empowered to entertain such complaints relating to the offences triable by the special court, when the special court shall have the power to take cognizance of the offences CRL.M.C.No. 7041 of 2014 -: 5 :- directly without any committal as per the 2[nd] proviso to Section 14 of the amended Act. 9. The court below ought to have followed the decision of this Court in _**Suo Motu Proceedings Initiated on a Communication Received from the Sessions Judge, Kalpetta**_ [2015 (4) KLT 439]. The power to take cognizance of these offences, is vested with the Special Court and not on the learned Magistrate. 10. Apart from all the above, the learned counsel for the petitioner has relied on the decision in _**Unnikrishnan R. and Others v. V.K. Mahanudevan and Others**_ [2014 (2) KLT 524] wherein it was held that all the members of the _Thandar_ community are not Scheduled Caste. Of course, it depends on evidence. If it is not shown that the defacto complainant is not a member of a Scheduled Caste, the offences under the Special Act have no application at all. It seems that the court below has taken cognizance of the CRL.M.C.No. 7041 of 2014 -: 6 :- offences, which is impermissible. Therefore, Annexure 9 order is liable to be quashed. In the result, this Crl.M.C. is allowed and Annexure 9 order stands quashed. The learned Magistrate shall hear the matter afresh and proceed with, in accordance with law. Sd/- **B. KEMAL PASHA, JUDGE.** ww