NITHIN K.R. v. STATE OF KERALA & OTHERS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 04TH DAY OF NOVEMBER 2020 / 13TH KARTHIKA, 1942** ## **WP(C).No.3466 OF 2020(G)** ## **PETITIONER/S:** **NITHIN.K.R., AGED 30 YEARS S/O.RAJAN PILLAI, HAVALDAR(RADIO OPERATOR), 107, BATTALION, RAF BHOPAL, BANGARASSIA, MADHYA PRADESH, PERMANENTLY RESIDING AT VRINDHAVANAM, SOORNAD NORTH, PARAKADAVU P.O., KOLLAM DISTRICT, MOB. 6000811131.** **BY ADVS. SRI.J.JULIAN XAVIER SRI.FIROZ K.ROBIN SRI.ROY JOSEPH SMT.AANNIES MATHEW** ## **RESPONDENT/S:** **1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, HOME DEPARTMENT, GOVERNMENT SECRETARIAT, GOVT. PRESS P.O., THIRUVANANTHAPURAM-695 001. 2 DIRECTOR GENERAL OF POLICE, KRALA, POLICE HEADQUARTERS, VAZHUTHACAUD P.O., TRIVANDRUM-695 010. 3 THE SUPERINTENDENT OF POLICE, MUPPALAM ROAD, ALAPUZHA BAZAR P.O., ALAPUZHA-688 012.** - **4 STATION HOSUE OFFICER, KAYAMKULAM POLICE STATION, KAYAMKULAM-THIRUVALLA HIGH WAY, KAYAMKULAM P.O., KERALA-690 502.** - **5 SMT.ARYA.A., AGED 24 YEARS D/O.AYYAPPAN NAIR, ARUN NIVAS, VALLIKKUNNAM P.O., MAVELIKKARA, ALAPUZHA DISTRICT-688 012.** **R1-4 BY SRI.SUMAN CHAKRAVARTHY, SENIOR GOVT.PLEADER R5 BY ADV. SRI.R.SUNIL KUMAR R5 BY ADV. SMT.A.SALINI LAL** ## **OTHER PRESENT:** **SRI.S.SAJJU, PUBLIC PROSECUTOR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04.11.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.3466 OF 2020(G)** **2** ## **ALEXANDER THOMAS, J. 'CR'** ## **= = = = = = = = = = = = = = = = =** ## **W.P.(C.) No. 3466 of 2020** **- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -** Dated this the 4[th] day of November, 2020 ## **JUDGMENT** ## The prayers in the above Writ Petition (Civil) are as follows : _(i) “To call for the records connected with the case leading to final report submitted before the Judicial First Class Magistrate Court-I, Kayamkulam in Crime No.214/2019 of Kayamkulam Police Station and all further proceedings including Ext.P9 issued by the Judicial First Class Magistrate Court-I, Kayamkulam may be quashed by issuing a writ of certiorari._ _(ii) To issue a writ of mandamus or any other appropriate writ, order or direction directing the 2[nd] respondent to conduct an independent investigation in Crime No.214/2018 of Kayamkulam Police Station ignoring the final report submitted in Crime No.214/2018 before the Judicial First Class Magistrate Court-I, Kayamkulam. (iii) To award cost of these proceedings. (iv) To grant such other reliefs that may be deemed just and proper by this Hon'ble Court.”_ 2. Heard Sri.J.Julian Xavier, learned counsel appearing for the petitioner (defacto complainant) Sri.S.Sajju, learned Government Pleader appearing for official respondents 1 to 4 and Smt.A.Salini Lal, learned counsel appearing for the contesting respondent No. 5 (accused). ## The case set up in the above Writ Petition (Civil) is as follows : _That the petitioner and the 5[th] respondent got married on 4.12.2016 and subsequently, she became pregnant. Follow up check up was continuously done as evidenced by Ext.5 series. However, the 5[th] respondent disliked the pregnancy and with the connivance of relatives and doctors terminated the pregnancy without the consent of the petitioner is between 10.7.2017 and 12.7.2017. Since the petitioner was not at the station as he was working as Havaldar in Indian Army, on coming to know about the illegal termination became furious and stated that he will make complaints. The result was that the 5[th] respondent wife_ **WP(C).No.3466 OF 2020(G)** **3** _preferred a complaint before the Sooranad Police Station alleging offences under Secs.498A, 316, 323, 342 r/w 34 IPC. That later, the police have subsequently deleted sections 316, 323 and 342. Thereafter, the petitioner's mother initially and the petitioner filed a complaint against the 5th respondent, her relatives and doctors for offences under Secs. 312, 315, 120B, 142, 143, 149, 506(2)of the IPC r/w Secs. 3, 4, and 5 of Medical Termination of Pregnancy Act, 1971. Since there was no enquiry, the petitioner was constrained to approach this Court and this Court vide Ext.P6 judgment directed the 3[rd] respondent herein to submit the final report within 3 months. Since there was no proper enquiry and non-compliance of the judgment and petitioner moved the contempt of courts case against the incumbent in the post of 3[rd] respondent herein and the contempt of courts case was closed on 22.7.2019 by granting 45 days time to complete the investigation. Thereafter, a statement (Ext.P8) was filed on 3.8.2019 stating that final report dated 3.8.2019 was submitted by referring the case. It is stated that no proper enquiry was conducted by the 3[rd] respondent and the documents produced as Exts.P11 to P15 would clearly substantiate the contention that the investigation conducted in the case on hand is only a mockery since the incumbent in the post of the 3[rd] respondent herein was furious as he was made the respondent in the Contempt of Courts case. This Court in a reported decision [2010 (1) KLT 399] has held that investigation can be transferred to another agency even after filing of charge sheet before court. In the case on hand, the contradictions evidenced in Exts. P11 and P15 necessitate an enquiry by the superior officer since the investigation is tainted and unfair._ 3. It is in the light of these averments and contentions that the petitioner has filed the instant Writ Petition (civil) with the aforementioned prayers. **WP(C).No.3466 OF 2020(G)** **4** 4. The petitioner is the defacto complainant in Ext.P3 FIR in Crime No.214/2018 of Kayamkulam Police Station, which has been registered for the offences punishable under Secs. 120B, 315 and 34 of the IPC and Secs.3, 4 and 5 of the Medical Termination of Pregnancy Act, 1971 (as amended in 2002) in which the 5[th] respondent herein has been arrayed as accused No.1 among the 6 accused persons arrayed therein. Accused Nos. 2 to 5 in Ext.P3 are mother, brother, father and aunt of R5 and A6 is the doctor, who is said to have treated R5 (A1). The petitioner herein is the husband of R5 herein. 5. The brief of the allegations in Ext.P3 crime is to the effect that in the said marital relationship between the petitioner and R5, the latter had become pregnant and that on account of the animosity of the accused persons towards the petitioner/defacto complainant, accused persons had conspired together to take steps to abort the foetus carried by R5 herein (A1) and that without the consent and knowledge of the petitioner, who is R5’s husband, R5’s family members had taken her away from the marital home and between 10.7.2017 and 12.7.2017, R5 had undergone abortion at the hospital concerned and that the termination of the pregnancy was caused by the accused persons, even though R5 (A1) had no health issues so as to warrant any such medical termination or abortion and that thereby the accused persons had committed the abovesaid offence and that on account of the said unlawful action, undergoing termination of pregnancy **WP(C).No.3466 OF 2020(G)** **5** of R5, the abovesaid accused persons have committed the abovesaid offences in question. In the nature of the view that is proposed to be taken by this Court, it is not necessary for this Court to delve into the factual details of this case. Suffice to say, the Police has completed the investigation and has filed Ext.P12 final report dated 4.11.2017 by way of refer report stating that the allegations of the petitioner/defacto complainant in Ext.P3 crime are false. 6. Incidentally, it is also relevant to note that R5 herein has also raised allegations against the petitioner herein, which has led to the registration of Ext.P1 Crime No.1072/2017 of Sooranad Police Station in which the petitioner herein has been arrayed as the 1[st] accused and his mother has been arrayed as the 2[nd] accused therein for offences punishable under Secs.498A, 316, 323, 342 and 34 of the IPC on the basis of the first information statement given by R5 herein. Two persons have been arrayed as accused in the said Ext.P1 crime No.1072/2017 of Sooranad Police Station. The allegations in Ext.P1 crime, in which the petitioner herein has been arrayed as accused No.1, are to the effect that after the marriage of the petitioner herein with R5 herein, she was subjected to extreme mental and physical cruelty by both the accused persons therein and that the accused persons have frequently demanded that she should bring in more money and gold ornaments and that on 10.7.2017, A2 therein (mother of the petitioner herein) had in a fit of rage had assaulted R5 by kicking on her **WP(C).No.3466 OF 2020(G)** **6** abdomen, which gave rise to complications to her pregnancy and she had to suffer bleeding and she was immediately taken to the hospital concerned and that on account of the said extreme assault suffered by her at the hands of A2 therein (mother of the petitioner herein), it led to premature abortion of the foetus that she was carrying in her pregnancy. 7. The case of R5 herein is to the effect that it is the petitioner and her mother, who are the guilty parties and that she has not taken any steps for undergoing medical termination of pregnancy on her own volition as alleged in Ext.P3 crime and as a matter of fact, she was put in a situation of being forced to face the premature abortion of the foetus on account of the extreme assault made by the mother of the petitioner herein by kicking on her abdomen etc. It appears that initially the Police had completed investigation in Ext.P1 crime No.1072/2017 of Sooranad Police Station by filing final report, whereby the offences as per Secs. 316, 323 and 342 were deleted. The submission of the said final report in Ext.P1 led to the pendency of calendar case, CC No.403/2018 on the file of the Judicial First Class Magistrate Court, Sasthamcottah. Thereafter, at the instance of the investigating agency, the learned Magistrate had permitted the conduct of further investigation and an additional final report/ additional charge sheet was filed adding the offences as per Secs. 316, 323 and 342 of the IPC, which were earlier deleted. 8. It is brought to the notice of this Court by the learned Public **WP(C).No.3466 OF 2020(G)** **7** Prosecutor that the abovesaid additional/supplementary final report or charge sheet was later accepted by the learned Magistrate in relation to the matter in Ext.P1 crime. Consequent to the submission of refer report dated 3.8.2019 in Ext.P3 crime No.214/2018 of Kayamkulam Police Station in which the petitioner herein is the defacto complainant and R5 herein is the accused No.1, the Judicial First Class Magistrate Court-I, Kayamkulam has issued Ext.P9 notice dated 19.10.2019 to the petitioner/defacto complainant to hear his version regarding the submission of the said refer report in Ext.P3 crime. It is this notice at Ext.P9 dated 19.10.2019 issued by the learned Magistrate in Ext.P3 crime that is under challenge in this proceedings. 9. There cannot be any dispute that Ext.P9 is a notice issued by the competent criminal court as part of the steps to be taken on the submission of the refer report filed by the investigating agency in Ext.P3 crime. It is by now well settled by rulings of the Apex Court as in _**Radhey Shyam v.Chhabi Nath & Ors.**_ [(2015) 5 SCC 423] that prerogative writs under Article 226 of the Constitution of India may not lie as against the decisions rendered by the civil court etc. The abovesaid legal position has been authoritatively laid down by a three Judge Bench of the Apex Court in the abovesaid _**Radhey Shyam’s**_ **case (supra)** [(2015) 5 SCC 423] by overruling the earlier legal position in that regard laid down by the two Judge Bench of the Apex Court in the case in _**Surya Dev Rai**_ v. _**Ram**_ **WP(C).No.3466 OF 2020(G)** **8** _**Chander Rai & Ors.**_ [(2003) 6 SCC 675]. This Court has held in various decisions that the abovesaid dictum laid down by the Apex Court would also apply with equal vigour in the case of decisions of a criminal court as well and that therefore, it is by now well settled that prerogative writs under Article 226 of the Constitution of India may not lie as against the judicial decisions and orders rendered by court “stricto senso” like a civil court or a criminal court which is governed by the Code of Civil Procedure, Code of Criminal Procedure etc. That apart, if there are any compelling reasons in exceptional cases involving grave abuse of the process, injustice etc., the appropriate remedy is already envisaged by the legislature by engrafting Sec.482 of the Cr.P.C. Therefore, it is also trite that when the statute itself provides explicit remedy which is efficacious, then the resort to the invocation of discretionary constitutional jurisdiction under Article 226 or Article 227 of the Constitution of India may not be right. 10. In the instant case, there is no dispute that Ext.P9 has emanated out of a judicial decision rendered by a criminal court concerned, whereby the notice has been issued to the petitioner/defacto complainant, consequent to the submission of the refer report in Ext.P3 crime. That apart, it is also brought to the notice of this Court in the statement dated 17.7.2020 filed by the investigating agency in this case that after the issuance of the impugned Ext.P9 notice dated 19.10.2019 issued by the Judicial First Class Magistrate Court-I, Kayamkulam in Ext.P3 crime, the **WP(C).No.3466 OF 2020(G)** **9** petitioner has already filed a protest complaint as a criminal miscellaneous petition No.6389/2019 before the said learned Magistrate in respect of the abovesaid criminal proceedings relating to the incidents arising out of Ext.P3 crime. The petitioner does not dispute the correctness of the said factual submission made by the investigating agency in their statement. Therefore, the petitioner has already availed the remedy of filing a protest complaint in the matter. Therefore, in the light of these aspects it may not be right and proper for this Court to entertain this petition, which is filed under Article 226 of Constitution of India. The position in that regard is no longer _res integra_ and is covered by a series of rulings of this Court as well as the Apex Court. 11. In the instant case, unless this Court grants the main prayer for quashment of the impugned Ext.P9 notice issued by the learned Magistrate, there is no question of this Court considering the other prayers made by the petitioner in the matter of conduct of further investigation. Since, the main prayer is for the quashment of the impugned decision taken by the competent criminal court, this Court is constrained to hold that in the light of the decision of the Apex Court in cases as in _**Radhey Shyam’s**_ case (supra) [(2015) 5 SCC 423], it may not be right and proper for this Court to resort to the remedy under Article 226 of the Constitution of India to consider the quashment of Ext.P9 notice, which is borne out from a judicial decision rendered by the competent criminal court. **WP(C).No.3466 OF 2020(G)** **10** 12. This Court in various decisions as in _**Parameswaran Nair v.Surendran**_ [2009 (1) KLT 794] has dealt with various aspects and dilates in cases involving submission of final report by the investigating agency before the competent criminal court/the learned Magistrate after the completion of the investigation report. 13. A Division Bench of this Court in the case in _**V.S.Achuthanandan v. State of Kerala and others**_ [ILR 2013 (4) Ker.190] in para No.44 thereof has referred to the decision of the Apex Court in the case in _**Jakia Nasim Ahesan and another v. State of Gujarat and others**_ [(2011) 12 SCC 302], wherein it has held that if the investigating agency finds lack of sufficient materials or reasonable grounds to proceed against an accused in a case, then the criminal court of competent jurisdiction should issue notice to the complainant and make available to him/copies of the statement of witnesses and other related documents as also the investigation report like the refer report and in the said circumstances, the competent criminal court will have to afford reasonable opportunity of being heard to the complainant as well. 14. After taking note of the said decision of the Apex Court, the Division Bench of this Court in _**V.S.Achuthanandan’s**_ case (supra) [ILR 2013 (4) Ker.190] in para No.44 thereof, emphasized that ordinarily, it is for the learned Magistrate, who has to take proper decision in the matter one way or other on the submission of the final report by way of refer **WP(C).No.3466 OF 2020(G)** **11** report in accordance with the provisions contained in the Code of Criminal Procedure and that if the learned Magistrate passes a judicial order, then the same could be challenged in the hierarchy of remedies provided under the Code of Criminal Procedure. 15. Accordingly, the Division Bench of this Court has held that since the final report by way of refer report was pending before the learned Magistrate who is competent to entertain and dispose of the same, in accordance with the Cr.P.C, which may result in either further investigation or acceptance of the refer report etc., the aggrieved parties are always at liberty to challenge such decision in accordance with law and it may not be right and proper for the High Court to exercise the powers under Article 226 of the Constitution of India to consider the issues of entrustment of further investigation etc. without giving an opportunity to the competent Magistrate, who is a statutory judicial body under the Code of Criminal Procedure to consider the final report and then take his decision in the matter, in accordance with law and then in such circumstances, it may not be right and proper for the High Court to have a roving enquiry into the correctness or otherwise of the final report as well as the case diary file at a stage when the learned Magistrate has not considered the aspects borne out from the submission of the refer report. 16. The Division Bench of this Court in para No.49 of the abovesaid decision in _**V.S.Achuthanandan’s**_ case (supra) [ILR 2013 (4) Ker.190] **WP(C).No.3466 OF 2020(G)** **12** has also referred to the judgment of the Apex Court in _**Vinay Tyagi v. Irshad Ali @ Deepak and others**_ [(2013) 5 SCC 762], wherein the Apex Court while considering the powers of the learned Magistrate under Sec.173 of the Cr.P.C. has held that the learned Magistrate has the power to take appropriate decision in the matter including the ordering of further investigation or acceptance of the refer report etc. and that the investigating agency has wide powers to conduct further investigation and even to submit supplementary reports. Further that, it has also been held therein that the learned Magistrate has ample power to conduct further investigation, where the final report/refer report discloses the finding of the investigating agency. But that the Magistrate may not have power to order _de novo_ or re-investigation or fresh investigation, which power ordinarily may be vested only with the superior courts like the High Court exercising powers under Sec.482 of the Cr.P.C. 17. This Court has held therein that various options are available to the learned Magistrate and that requirement of sending notice to the defacto complainant upon receipt of a refer report is not an empty formality and the defacto complainant can make submissions to persuade the Magistrate to take cognizance of the offence and issue process. If learned Magistrate proceeds to accept a refer report after issue of notice to **WP(C).No.3466 OF 2020(G)** **13** the defacto complainant, then it can be safely deemed that the original complaint is dismissed by the Magistrate court. This Court had observed so in para No.6 of the decision in _**Parameswaran Nair's**_ case (supra) [2009 (1) KLT 794] that only on dismissal of the original complaint that a 2[nd] complaint which is otherwise known as protest complaint, will be maintainable and that too, on limited grounds such as manifest error or manifest miscarriage of justice in the previous order or the defacto complainant is relying on the new facts of which he had no knowledge etc. It may be profitable to refer to para Nos. 6, 7, 11, 12, 14, 15, 16 and 17 of the abovesaid decision of this Court in _**Parameswaran Nair's**_ case (supra) [2009 (1) KLT 794] which read as follows : _6. “When a final report is filed after investigation under Section 173(2) of the Code, Magistrate is not bound by the opinion of the investigating officer. It is for the Magistrate to decide, on the materials available on the final report, including the documents submitted along with it and the result of the investigation, whether cognizance of the offences is to be taken or not and if it is to be taken whether it is to be taken on all the offences or some of the offences and summons is to be issued to all or some of the accused or whether further investigation is to be ordered. Even when the report of the police officer is to the effect that an offence appears to have been committed by a particular person or persons, the Magistrate has the three options. (1)He may accept the report and take cognizance of the offence and issue process. (2)He may disagree with the report and direct further investigation under Sub Section (3) of Section 156. (3)He may disagree with the report and drop the proceedings. Similarly, if the report discloses that no offence appears to have been committed, Magistrate has again the three options (1)He may accept the report and drop the proceedings (2)He may disagree with the findings in the report and take the view that there is sufficient ground for proceeding further and take cognizance and issue process (3)He may direct further investigation under Sub Section 3 of Section 156. While deciding to take cognizance on the complaint available before him, Magistrate has to record the statement of the_ **WP(C).No.3466 OF 2020(G)** **14** _complainant and his witnesses, if any present, as provided under Section 200 of the Code. If on recording the statement Magistrate finds that a further investigation is necessary, then as provided under Section 202, the Magistrate is competent to direct an investigation to be made by a police officer or by such other person as he thinks fit and on getting the report Magistrate can dismiss the complaint under Section 203 of the Code if he is of the opinion that there is no sufficient ground for proceeding. He is entitled to issue summons to the accused if he is of the opinion that there is sufficient ground for proceeding further. The legal position is settled in_ _**Tula Ram v. Kishore Singh (AIR 1977 SC 2401)** as follows._ _“Thus on a careful consideration of the facts and circumstances of the case the following legal propositions emerge:_ _1. That a Magistrate can order investigation under S.156(3) only at the pre-cognizance stage, that is to say, before taking cognizance under Sections 190, 200 and 204 and where a Magistrate decides to take cognizance under the provisions of Chapter 14 he is not entitled in law to order any investigation under Section 156(3) though in cases not falling within the proviso to Section 202 he can order an investigation he can order an investigation by the police which would be in the nature of an enquiry as contemplated by Sec.202 of the Code._ _2. Where a Magistrate chooses to take cognizance he can adopt any of the following alternatives:_ - _(a)He can peruse the complaint and if satisfied that there are sufficient grounds for proceedings he can straightway issue process to the accused but before he does so he must comply with the requirements of Section 200 and record the evidence of the complainant or his witnesses._ - _(b) The Magistrate can postpone the issue of process and direct an enquiry by himself._ _(c) The Magistrate can postpone the issue of process and direct an enquiry by any other person or an investigation by the police._ _3. In case the Magistrate after considering the statement of the complainant and the witnesses or as a result of the investigation and the enquiry ordered is not satisfied that_ **WP(C).No.3466 OF 2020(G)** **15** _there are sufficient grounds for proceeding he can dismiss the complaint._ _4. Where a Magistrate orders investigation by the police before taking cognizance under S.156(3) of the Code and receives the report thereupon he can act on the report and discharge the accused or straightway issue process against the accused or apply his mind to the complaint filed before him and take action under Section 190 as described above._ _” A three Judge Bench of the Apex court analysing the earlier decisions in_ _**M/s.India Carat Pvt. Ltd. v. State of Karnataka** (AIR 1989 SC 885) held;_ _“16. The position is, therefore, now well settled that upon receipt of a police report under Section 173(2) a Magistrate is entitled to take cognizance of an offence under Section 190(1) (b) of the Code even if the police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order the issue of process to the accused. Section 190(1)(b) does not lay down that a Magistrate can take cognizance of an offence only if the investigating officer gives an opinion that the investigation has made out a case against the accused. The Magistrate can ignore the conclusion arrived at by the investigating officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, in exercise of his powers under Section 190(1)(b) and direct the issue of process to the accused. The Magistrate is not bound in such a situation to follow the procedure laid down in Sections 200 and 202 of the Code for taking cognizance of a case under Section 190(1)(a) though it is open to him to act under Section 200 or Section 202 also. The High Court was, therefore, wrong in taking the view that the Second Additional Chief Metropolitan Magistrate was not entitled to direct the registration of a case against the second respondent and order the issue of summons to him.”_ _7. Scope of enquiry under Section 202 is limited to finding out the truth or otherwise of the complaint in order to determine whether summons should be_ **WP(C).No.3466 OF 2020(G)** **16** _issued or not. If the order is under Section 203 of the Code on forming the opinion that there is no sufficient ground for proceeding, it must be based on the statement of the complainant and his witnesses if any recorded and the result of investigation if any and also the report on the enquiry if any ordered under Section 202. Magistrate has to apply his mind to the materials and form an opinion whether or not there is sufficient ground for proceeding. If he finds that there are materials to be proceeded further, summons is to be issued as provided under Section 204 of the Code. If not complaint is to be dismissed under Section 203 of the Code. Even if the final report is submitted under Sub Section 2 of Section 173, on investigation as directed by the Magistrate under Section 156(3) of the Code, for the reasons that Magistrate has not taken cognizance of the offence and instead directed investigation under Sub Section 3 of Section 156 of the Code, at the pre-cognizance stage, the original complaint is not effaced from the record. As a result Magistrate is competent to take cognizance of the offence as provided under Section 190(1)(b) on the police complaint originally filed, though investigation under Sub Section 3 of Section 156 of the Code was earlier ordered. 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._ _12. If the original complaint stood dismissed by the acceptance of the refer report submitted after investigation the protest complaint if any filed can only be treated as a second complaint. If so, the protest complaint will lie only if there was a manifest error or manifest miscarriage of justice in the earlier order or new facts which the complainant had no knowledge of or with reasonable diligence could not have brought forward in the previous proceedings is adduced. When this is the legal position, it is not lawful to the Magistrate to ignore the final report submitted by the police under Section 173(2) of the Code. Magistrate is bound to consider the final report and decide which of the options available to him is to be exercised._ _14. When the complainant is entitled to a notice before consideration of the refer report submitted by the police under Section 173(2) of the Code and he has a right to be heard before it is considered and is entitled to point out why the report cannot be accepted, it cannot be said that the notice contemplated is an empty_ **WP(C).No.3466 OF 2020(G)** **17** _formality and the Magistrate need not consider the final report at all and is to take action on the protest complaint, ignoring the final report._ _15. In practice when a complainant receives a notice from the Magistrate intimating the submission of a final report by the police to the effect that no offence is made out, informing that the report is being considered by the Magistrate, he files a complaint which in common usage is termed protest complaint. So long as cognizance was not taken on the first complaint and only an order for investigation under Section 156(3) at pre-cognizance stage was ordered, the complaint is not effaced from the file. Hence the Magistrate at the stage of considering the final report under Section 173(2) is entitled to take cognizance of the offence on the materials furnished by the police under Section 190(1)(b) rejecting the opinion of the police or is entitled to take cognizance under Section 190(1)(a) on the original complaint after recording the statement of the complainant and his witnesses as provided under Section 200 or even direct investigation under Section 202 and conduct an inquiry and decide whether on all these materials whether process is to be issued under Section 204. The protest complaint if any filed at that stage cannot be treated as the second complaint, attracting the limitations of a second complaint. Such a protest complaint can only be treated as an objection to the final report submitted under Section 173(2). On filing of such a protest complaint or an objection to the final report, Magistrate is bound to consider the final report with the documents and statements produced and decide whether cognizance is to be taken on the police report under Section 190(1) (b) of the Code. If not Magistrate can record the statement of the complainant and his witnesses and even can direct an investigation under Section 202 and based on the inquiry decide whether process is to be issued under Section 204 or complaint is to be dismissed under Section 203._ _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 recored in that enquiry._ _17. The well settled legal propositions can be summed up as follows;_ _(1) When a final report is made by an officer of the Police_ **WP(C).No.3466 OF 2020(G)** **18** _Station under sub section 2 of section 173 of Code of Criminal Procedure, if the Magistrate is not inclined to take cognizance of the offence and issue process, notice must be issued to the complainant/first informant and opportunity is to be granted to him to make his submissions to persuade the Magistrate to take cognizance of the offence and issue process._ _(2) The Magistrate is not bound by the opinion of the investigating officer. He can disregard the report and take the view that there is sufficient ground for proceeding further and take cognizance of the offence and issue process. If the Magistrate decides to disregard the report and take cognizance of the offence and issue process to the accused, it is not mandatory to issue notice to the complainant. Notice is mandatory if the Magistrate is inclined to accept the report. (3) Magistrate can direct further investigation under sub section 3 of Section 156._ _(4) Magistrate can take cognizance on the final report itself under Section 190(1)(b) disregarding the opinion of the police and issue summons._ _(5) Magistrate can take cognizance on the original complaint, where investigation under sub Section 3 of Section 156 was earlier ordered and record the statement of the complainant and the witnesses as provided under Section 200 and can conduct an inquiry, In that inquiry Magistrate can direct investigation by a police officer or such other officer as provided under Section 202 and based on the report and all these materials decide whether cognizance of the offence is to be taken and process is to be issued._ _(6) If the Magistrate accepts the report and drop the proceedings after granting opportunity to the complainant, though complainant can thereafter file a second complaint it will lie only if there was a manifest error or manifest miscarriage of justice in the previous order or there is any exceptional circumstances like new facts which the complainant had no knowledge of or with due diligence could not have brought forward in the previous proceedings._ **WP(C).No.3466 OF 2020(G)** **19** 18. In the light of the abovesaid well settled aspects and in the light of the crucial aspects that unless this Court grants the main prayer for quashment of the impugned Ext.P9 notice issued by the competent criminal court, it may not be feasible for this Court to consider the other prayer in the matter of conduct of further investigation, it is only to be held that resort to the remedy under Article 226 of the Constitution of the India is misplaced and misconceived. It is all the more so in the light of the dictum laid down by the three Judge Bench of the Apex Court in _**Radhesh Syam's**_ case (supra) [2015 (5) SCC 423] as well as the various decisions of the Apex Court and of this Court referred to hereinabove including the decision of the Division Bench of this Court in _**V.S.Achuthanandan's**_ case (supra) [ILR 2013 (4) Ker.190]. The legal principles relating to the various options available before the learned Magistrate consequent to the filing of a refer report have been delineated with all clarity in a catena of rulings of this Court including the one in _**Parameswaran Nair's**_ case (supra) [2009 (1) KLT 794]. In the light of the abovesaid aspects, the matter does not require any further investigation and these are all the aspects which are by now well settled legal principles. The petitioner has already moved a protest complaint before the learned Magistrate. In the light of these aspects, it will not be right and proper for this Court to entertain this petition. This Court has not entered into the merits of the controversy in any manner and all those aspects are to be urged by the **WP(C).No.3466 OF 2020(G)** **20** parties concerned for the consideration of the learned Magistrate, who has to bestow his consideration in the matter in accordance with law and in the light of the well settled legal principles in that regard. All contentions available to the petitioner, the respondent-State and the contesting respondent persons are left open to be raised and decided in appropriate proceedings as aforestated in the manner known to law. 19. Moreover, it has to be noted that though there are six accused persons arrayed in Ext.P3 crime, the petitioner has impleaded only accused No.1 as a contesting respondent in this writ petition. Therefore, the petition is also liable for rejection on the ground of non-impleadment of the affected persons. With these observations and directions and with the said liberty to the parties concerned, the above Writ Petition (Civil) will stand disposed of. **Sd/-** **ALEXANDER THOMAS JUDGE** SKS **WP(C).No.3466 OF 2020(G)** **21** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE REPORT FILED BY THE SUB INSPECTOR OF POLICE, SOORNAD POLICE STATION IN CRIME NO.1072/2017 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, SASTHAMKOTTA (TEMPORARY) DATED 05.08.2017.** **EXHIBIT P2 TRUE COPY OF THE COMPLAINT DATED 05.12.2017 FILED BY THE MOTHER OF THE PETITIONER BEFORE THE VALLIKKUNNAM POLICE STATION.** **EXHIBIT P3 TRUE COPY OF THE FIRST INFORMATION REPORT DATED 20.01.2018 IN CRIME NO.214/2018 OF KAYAMKULAM POLICE STATION.** **EXHIBIT P4 TRUE COPY OF THE REPRESENTATION DATED NIL SUBMITTED BY THE PETITIONER BEFORE THE DIRECTOR GENERAL OF POLICE, KERALA.** **EXHIBIT P5 TRUE COPY OF THE REPORT EARLY ANTENATAL SONOGRAPHY TEST CONDUCTED ON THE 5TH RESPONDENT DATED 20.04.2017 FROM C.M.IMAGES, DEPARTMENT OF IMAGING SCIENCE, CHRISTIAN MISSION HOSPITAL, PANTHALAM. EXHIBIT P5 A TRUE COPY OF THE ANTENANTAL SONOGRAPHY FOETAL ANATOMY DATED 18.05.2017 CONDUCTED BY THE 5TH RESPONDENT. EXHIBIT P5 B TRUE COPY OF THE ANTENATAL SONOGRAPHY FOETAL ANATOMY SURVEY CONDUCTED ON THE 5TH RESPONDENT DATED 03.07.2017 FROM C.M.IMAGES, DEPARTMENT OF IMAGING SCIENCE, CHRISTINA MISSION HOSPITAL, PANTHALAM. EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 18.01.2019 IN WPC NO.35113/2018. EXHIBIT P7 TRUE COPY OF THE JUDGMENT DATED 22.07.2019 IN CON.CASE NO.908/2019 IN WPC NO.35113/2018. EXHIBIT P8 TRUE COPY OF THE STATEMENT FILED ON BEHALF OF THE 3RD RESPONDENT HEREIN DATED 05.08.2019 IN WPC NO.35113/2018.** **WP(C).No.3466 OF 2020(G) 22** |**EXHIBIT P9**|**TRUE COPY OF THE NOTICE TO THE COMPLAINANT**| |---|---| ||**DATED 19.10.2019 ISSUED BY THE JUDICIAL**| ||**FIRST CLASS MAGISTRATE COURT-I, KAYAMKULAM.**| |**EXHIBIT P10**|**TRUE COPY OF THE STATEMENT DATED 12.07.2019**| ||**FILED BY THE 6TH RESPONDENT IN CON.CASE**| ||**NO.809/2019.**| |**EXHIBIT P11**|**TRUE COPY OF THE TREATMENT CERTIFICATE**| ||**DATED 05.08.2017 ISSUED FROM CHRISTOS**| ||**HOSPITAL, KAYAMKULAM.**| |**EXHIBIT P12**|**TRUE COPY OF THE STATEMENT DATED 05.08.2017**| ||**ALONG WITH COPY OF FINAL REPORT DATED**| ||**04.11.2017 IN CRIME NO.1072/2017.**| |**EXHIBIT P13**|**COPY OF THE STATEMENT DATED 08.07.2019**| ||**GIVEN TO DEPUTY SUPERINTEND OF POLICE,**| ||**DISTRICT CRIME BRANCH ALAPUZHA.**| |**EXHIBIT P14**|**TRUE COPY OF THE STATEMENT DATED 26.07.2019**| ||**GIVEN TO DEPUTY SUPERINTENDENT OF POLICE,**| ||**ALAPUZHA.**| |**EXHIBIT P15**|**TRUE COPY OF THE CHART IN THE NAME OF 5TH**| ||**RESPONDENT DATED 10.07.2017.**|