High Court of KeralaSingle JudgeAllowed

M.P. Saleem and others v. State of Kerala and M.K Manoj

Case / Petition Number:Crl.MC.No. 7670 of 2016

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • K. Abraham Mathew
Judgment Date
2018-11-01
Court Decision / Holding
The Crl.M.C. is allowed. The impugned order is set aside. The learned Magistrate is directed to reconsider the matter and pass appropriate orders in accordance with law.
Final Disposition
Allowed

Parties to the Case

Appellants / Petitioners

  • M.P.Saleem
  • Ali
  • Abdul Raheem
  • Younas M.B
  • Abdul Rahiman
  • T.A Shajahan
  • Abdul Basheer
  • Moideen P.A
  • Kareem P.M
  • Pareekunju V.B
  • M.U Shaju
  • Mani O.I
  • Jas P.K
  • P.M Jas So. Moideen
  • Nishad C.G
  • Shamsudeen K.E Abbas
  • Raheem M.A
  • JAMAL C.K
  • Shamsudehen MP
  • K.M Madhavan
  • Pradeep G
  • Renjan V.A
  • Jayaprakash K.K
  • Anish C.A
  • Binukumar M P
  • Shanmughan K.K
  • Velayudhan P
  • Suresh M.M

Respondents

  • State of Kerala represented by Public Prosecutor, Ambalamedu Police Station area
  • M.K Manoj S/o Kannannamanakkekkara Veettil, Peringala P.O., Ernakulam District

Legal Representation & Advocates

Counsels for Petitioners

  • • Smt. K.K. Sheeba

Counsels for Respondents

  • • Sri. A.S. Dheeraj
  • • Sri K.V. Rejanish
  • • Sri Varghese K. Paul
  • • Sri R. Krishnakumar

Case Synopsis & Summary

This is a criminal miscellaneous case under section 482 Cr.P.C. before the High Court of Kerala at Ernakulam. The petition challenges the order of cognizance issued by the Judicial First Class Magistrate, Chottanikkara, in CP 5/2016 in connection with offences under sections 143, 144, 147, 148, 307, 324 and 326 read with section 149 IPC, based on a complaint by the second respondent. The police had earlier registered Crime No.146 of 2013 at Ambalamedu Police Station. The petitioners contend that the magistrate did not apply his mind before issuing process; summons were issued mechanically; he did not take into account materials collected by the police and did not examine all witnesses cited by the second respondent during inquiry. They further allege that witnesses were not properly examined and the information supplied by the police was treated as true. The counsel for the petitioners argue that the impugned order is unsustainable in law. The court refers to Pepsi Foods Ltd. v. Special Judicial Magistrate and others (1998) 5 SCC 749 to emphasize the need for a reasoned and mindful cognizance procedure. On these grounds, the High Court holds that the impugned order lacked due process, sets it aside, and directs the learned Magistrate to reconsider the matter in accordance with law, the evidence, and applicable principles.

Provisions of Law Cited

Section 482 Cr.P.C.IPC Sections 143, 144, 147, 148, 307, 324, 326 read with 149

Legal Doctrines & Maxims

  • Pepsi Foods Ltd. v. Special Judicial Magistrate and others, (1998) 5 SCC 749 – principle that Magistrate must apply mind and consider materials before issuing process; proper cognizance procedure under Cr.P.C.

Submissions & Arguments

Contentions of Appellants / Petitioners

Petitioners contend that cognizance in Crime No. 146/2013 was taken by the Judicial First Class Magistrate in CP 5/2016 without applying mind, and the process was issued mechanically. They contend the magistrate relied on the police information without properly considering the materials gathered during investigation (Annexures A1–A2) and failed to examine all witnesses cited by the second respondent during inquiry. They challenge the manner in which summons were issued, arguing there was a lack of rational inquiry into whether the allegations were prima facie sustainable and whether the accused could be summoned for trial. They point to Pepsi Foods Ltd. v. Special Judicial Magistrate (1998) 5 SCC 749, which prescribes a reasoned, mindful approach to cognizance and evaluation of available evidence before issuing process. They further allege that the petitioners were singled out by the complaint without lawful basis, and that the magistrate ignored material facts that would affect the validity of the proceedings. On this basis, they seek quashing of the impugned order and a remand for lawful reconsideration.

Contentions of Respondents

Respondents’ arguments are not elaborated in the judgment. The order records that the petitioners and the Public Prosecutor were heard, and the court relied on the Pepsi Foods standard to hold that the magistrate failed to follow the prescribed procedure; the impugned order was set aside and the matter remanded for reconsideration. The respondents’ detailed submissions are not apparent in the text.

Cited Precedents (1)

Case NameCitationTreatmentExplanation
Pepsi Foods Ltd. v. Special Judicial Magistrate and others1998 (5) SCC 749PositiveCited as controlling authority on the procedure magistrates must follow before issuing process; used to show lack of application of mind in the present case.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE K.ABRAHAM MATHEW THURSDAY ,THE 01ST DAY OF NOVEMBER 2018 / 10TH KARTHIKA, 1940** ## **Crl.MC.No. 7670 of 2016** **AGAINST THE ORDER IN CP 5/2016 of JUDICIAL FIRST CLASS MAGIST. COURT, CHOTTANIKKARA(TEMPORARY) CRIME NO. 146/2013 OF Ambalamedu Police Station , Ernakulam** **PETITIONERS:** |**1**|**M.P.SALEEM**| |---|---| ||**S/O. PAREED,MATTAPPILLY MOOLAYIL HOUSE, KARIMUGAL,**| ||**PUTHENCRUZ P.O 682308**| |**2**|**ALI**| ||**S/O. AHAMMED,MATHRAKKATTU HOUSE, PADATHIKKARA,**| ||**PINARMUNDA,PERINGALA P.O**| |**3**|**ABDUL RAHEEM**| ||**S/O. ABUTHARAMATTATHIL HOUSE,PADATHIKKARA,**| ||**PINARMUNDA,PERINGALA P.O**| |**4**|**YOUNAS M.B**| ||**S/O. BAVA,MATHRAKKATTU HOUSE,PINARMUNDA,PERINGALA P.O**| |**5**|**ABDUL RAHIMAN**| ||**S/O. MUHAMMED,PUTHENPURACKAL HOUSE, PINARMUNDA,**| ||**PERINGALA P.O**| |**6**|**T.A SHAJAHAN**| ||**S/O. ABOOBACKERTHANNISSERY HOUSE, KUMARAPURAM**| ||**P.OPALLIKKARA**| |**7**|**ABDUL BASHEER**| ||**S/O. HASAN,KOICKAL HOUSE, BRAHMAPURAM P.O**| |**8**|**MOIDEEN P.A**| ||**S/O. ABOOBACKER,PERUMAMATTATHIL HOUSE,PINARMUNDA,**| ||**PERINGALA**| ## **Crl.MC.No. 7670 of 2016 2** - **9 KAREEM P.M S/O. MUSTHAFA, PADATHIKKARA HOUSE,PINARMUNDA, PERINGALA P.O** - **10 PAREEKUNJU V.B S/O. BAVAKUNJUVETTARMOOLAYIL HOUSE,PINARMUNDA, PERINGALA P.O** - **11 M.U SHAJU S/O. ULAHANNAN, MANKUDIYIL HOUSE,BRAHMAPURAM P.O** - **12 MANI O.I S/O. ITTOOP,OLANGATTU HOUSE, KANINADU P.O** - **13 JAS P.K S/O. KOCHUNNI,POOVATHUMVEETTIL HOUSE, PERINGALA P.O** - **14 P.M JAS SO. MOIDEEN PERUMAMATTOM HOUSE,PINARMUNDA, PERINGALA P.O** - **15 NISHAD C.G S/O. GOPI,CHELAKKUZHIKAROTTU HOUSE,FACT COLONY, PUTHENCRUZ P.O** - **16 SHAMSUDHEEN K.E ABBAS S/O. EBRAHIM,KUTTIKATTIL HOUSE,PINARMUNDA, PERINGALA P.O** - **17 RAHEEM M.A S/O. ALIMATHRAKKATTU HOUSE, BRAHMAPURAM P.O** - **18 JAMAL C.K S/O. KADARCONDAPPILLIL HOUSE, PINARMUNDA, PERINGALA P.O** - **19 SHAMSUDHEEN MP S/O. PREEKUTTYMADAPPATTU HOUSE, PINARMUNDA, PERINGALA** - **20 K.M MADHAVAN S/O. MANIYANKANIYANKUZHIKAROTTU HOUSE,PALLIMUGHAL,BRAHMAPURAM P.O** - **21 PRADEEP G S/O. GOPALAKRISHNANPULLANTHUTHIL HOUSE, PALLIMUGHAL,** ## **Crl.MC.No. 7670 of 2016 3** ## **BRAHMAPURAM P.O** - **22 RENJAN V.A S/O. AYYAPPANKUTTYVETTIKKATTU HOUSE, VELOOR, PUTHENCRUZ P.O** - **23 JAYAPRAKASH K.K S/O. KUNJATHANKAKKATTUPADAM HOUSE, BRAHMAPURAM P.O** - **24 ANISH C.A S/O. APPUCHAKKALAKUZHIYIL HOUSE, BRAHMAPURAM P.O** - **25 BINUKUMAR M P S/O. PALLIYANPEECHINGACHIRAPPATTU HOUSE,VELOORKARA, PUTHENCRUZ P.O** - **26 SHANMUGHAN K.K S/O. KUNHATHAN,KAKKATTUPADAM HOUSE, BRAHMAPURAM P.O** - **27 VELAYUDHAN P S/O. KURUMBANPARAPURATH HOUSE, PALLIMUGHAL, PERINGALA P.O** - **28 SURESH M.M S/O. MOHANANMANAYIL PARAMBIL HOUSE, FACT COLONY,KARIMUGHAL, PUTHENCRUZ BY ADVS. SRI.VARGHESE K.PAUL SRI.R.KRISHNAKUMAR (CHERTHALA)** ## **RESPONDENTS:** - **1 STATE OF KERALA REP. BY SUB INSPECTOR OF POLICE(CRIME NO 146 OF 2013)AMBALAMEDU POLICE STATION,AMBALAMEDUERNAKULAM, REPRESENTED BY PUBLIC PROSECUTOR'HIGH COURT OF KERALA, ERNAKULAM 682 031** - **2 M.K MANOJ S/O. KANNANMANAKKAEKKARA VEETTIL,PERINGALA P.OPINARMUNDA, KUNNATHUNAD, ERNAKULAM DISTRICT 683565** **BY ADVS. SRI.A.S.DHEERAJ SRI.K.V.REJANISH** **Crl.MC.No. 7670 of 2016 4** ## **SMT.K.K.SHEEBA** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 01.11.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **ORDER** Petition filed under Section 482 Cr.P.C. 2. Petitioners are the accused in C.P No.5 of 2016 on the file of the Judicial First Class Magistrate Court, Chottanikkara. Cognizance of the offences under Sections 143, 144, 147, 148, 307, 324 and 326 r/w Section 149 IPC was taken on a complaint filed by the second respondent. Earlier on the information given by the second respondent the police had registered a case Crime No.146 of 2013 at Ambalamedu Police Station for the said offences. The police referred the cases as false. After taking cognizance of the offences the learned Magistrate examined witnesses produced by the second respondent and ordered issuance of process to the petitioners. This is challenged. ## **Crl.MC.No. 7670 of 2016 5** 3. Heard the learned counsel for the petitioners and the learned Public Prosecutor. 4. I have perused the order passed by the learned Magistrate which is seen in Annexure-A5 proceedings sheet. There is nothing to show that he applied of his mind before he ordered issuance of process to the petitioners. The Supreme Court in _**Pepsi Foods Ltd., and another vs. Special Judicial Magistrate and others (1998) 5 SCC 749**_ has discussed the procedure to be followed by a Magistrate in such a case. The learned Magistrate did not follow the procedure. Summons was issued in a mechanical manner. It is also pertinent to note that he did not even take into consideration the materials collected by the police during the investigation. The petitioners have also an allegation that all the witnesses cited by the second respondent were not examined as witnesses during the enquiry. For the reasons stated above, the impugned order is liable to be set aside. ## **Crl.MC.No. 7670 of 2016 6** In the result, this Crl. M.C is allowed. The impugned order is set aside. The learned Magistrate is directed to reconsider the matter and pass appropriate orders in accordance with law. Sd/- ## **K.ABRAHAM MATHEW JUDGE** pm ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** |**ANNEXURE A1**|**A TRUE COPY OF THE FIR IN CRIME NO**| |---|---| ||**146/2013 OF AMBALAMEDU POLICE STATION DT**| ||**25-02-2013 WITH F.I STATEMENT OF THE 2ND**| ||**RESPONDENT**| |**ANNEXURE A2**|**A TRUE COPY OF THE FINAL REPORT IN FIR IN**| ||**CRIME NO 146/2013 OF AMBALAMEDU POLICE**| ||**STATION WITH COPY OF THE NOTICE ISSUED TO**| ||**THE 2ND RESPONDENT**| |**ANNEXURE A3**|**A TRUE COPY OF THE PROTEST COMPLAINT, CMP**| ||**NO 1363/2015 FILED BY THE 2ND RESPONDENT**| ||**BEFORE THE HON'BLE JUDICIAL FIRST CLASS**| ||**MAGISTRATE COURT, CHOTTANIKKARA DT 28-11-**| ||**2015**| |**ANNEXURE A4**|**A TRUE COPY OF THE STATEMENT OF PW1 BEFORE**| ||**THE HON'BLE J.F.C.M COURT,CHOTTANIKKARA IN**| ||**CMP NO 1363/15**| |**ANNEXURE A(A)**|**A TRUE COPY OF THE STATEMENT OF PW2 BEFORE**| ## **Crl.MC.No. 7670 of 2016 7** **THE HON'BLE J.F.C.M COURT,CHOTTANIKKARA IN CMP NO 1363/15** **ANNEXURE A(B) A TRUE COPY OF THE STATEMENT OF PW3 BEFORE THE HON'BLE J.F.C.M COURT,CHOTTANIKKARA IN CMP NO 1363/15** **ANNEXURE A(C) A TRUE COPY OF THE STATEMENT OF PW4 BEFORE THE HON'BLE J.F.C.M COURT,CHOTTANIKKARA IN CMP NO 1363/15 ANNEXURE A(D) A TRUE COPY OF THE STATEMENT OF PW5 BEFORE THE HON'BLE J.F.C.M COURT,CHOTTANIKKARA IN CMP NO 1363/15 ANNEXURE A(E) A TRUE COPY OF THE STATEMENT OF PW6 BEFORE THE HON'BLE J.F.C.M COURT,CHOTTANIKKARA IN CMP NO 1363/15 ANNEXURE A(F) A TRUE COPY OF THE STATEMENT OF PW7 BEFORE THE HON'BLE J.F.C.M COURT,CHOTTANIKKARA IN CMP NO 1363/15 ANNEXURE A(G) A TRUE COPY OF THE STATEMENT OF PW8 BEFORE THE HON'BLE J.F.C.M COURT,CHOTTANIKKARA IN CMP NO 1363/15 ANNEXURE A(H) A TRUE COPY OF THE STATEMENT OF PW9 BEFORE THE HON'BLE J.F.C.M COURT,CHOTTANIKKARA IN CMP NO 1363/15** **ANNEXURE A(I) A TRUE COPY OF THE STATEMENT OF PW10 BEFORE THE HON'BLE J.F.C.M COURT,CHOTTANIKKARA IN CMP NO 1363/15 ANNEXURE A(J) A TRUE COPY OF THE STATEMENT OF PW11 BEFORE THE HON'BLE J.F.C.M COURT,CHOTTANIKKARA IN CMP NO 1363/15 ANNEXURE A(K) A TRUE COPY OF THE STATEMENT OF PW12 BEFORE THE HON'BLE J.F.C.M COURT,CHOTTANIKKARA IN CMP NO 1363/15 ANNEXURE (L) A TRUE COPY OF THE STATEMENT OF PW13 BEFORE THE HON'BLE J.F.C.M COURT,CHOTTANIKKARA IN CMP NO 1363/15** **Crl.MC.No. 7670 of 2016 8** **ANNEXURE (M) A TRUE COPY OF THE STATEMENT OF PW14 BEFORE THE HON'BLE J.F.C.M COURT,CHOTTANIKKARA IN CMP NO 1363/15** **ANNEXURE 5 A TRUE COPY OF THE ORDERSHEET IN C.M.P NO 1363/2015 OF THE HON'BLE JUDICIAL FIRST CLASS MAGISTRATE COURT, CHOTTANIKKARA ANNEXURE A6 A TRUE COPY OF THE SUMMONS ISSUED TO THE 1ST PETITIONER FROM THE HON'BLE JUDICIAL FIRST CLASS MAGISTRATE COURT, CHOTTANIKKARA** **RESPONDENTS' EXHIBITS: NIL** **// TRUE COPY // PA TO JUDGE**