Rajeevan U.M. v. State of Kerala and Raveendran

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 22ND DAY OF DECEMBER 2020 / 1ST POUSHA, 1942** **Crl.MC.No.3104 OF 2014** **CC 47/2014 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,TALIPARAMBA** ## **PETITIONER/ACCUSED:** **RAJEEVAN U.M. S/O.BALAN U.N., UTHIKUNNEL HOUSE, P.O.ERUVESSI, SREEKANDAPURAM VIA, KANNUR - 670 632.** ## **BY ADV. SRI.KALEESWARAM RAJ** ## **RESPONDENTS/COMPLAINANT:** - **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM** - **2 RAVEENDRAN P S/O NARAYANAN, PAYATTIYAL HOUSE, POOPPARAMBA, ERUVESSI AMSOM DESOM, TALIPARAMBA TALUK** **BY ADVS. SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 22.12.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C No. 3104 of 2014 2 ## ALEXANDER THOMAS, J. -----------------------------------Criminal M.C. No. 3104 of 2014 -----------------------------------Dated this the 16[th] day of December, 2020 ## **O R D E R** The prayers in the afore captioned Criminal Miscellaneous Case filed under Sec.482 of Cr.PC are as follows: - _“(i) To quash the entire proceedings in C.C No.47/2014 on the file of the Judicial First Class Magistrate, Taliparamba._ - _(ii) To issue such other orders or directions as may be prayed for and that this Hon’le Court may deem fit on the facts and circumstances of the case.”_ 2. Heard Sri.Kaleeswaram, learned counsel appearing for the petitioner(A1) and Sri.Saigi Jacob Palatty, learned Public Prosecutor appearing for R1 State of Kerala. Though notice has been duly served on contesting respondent No.2 (defacto complaiant), there is no appearance for that party. 3. The above Crl.M.C has been filed as early as on 09-06-2014. The proceedings under challenge is the decision taken by the learned Magistrate to take cognizance of the offences alleged in the private criminal complainant filed by the 2[nd] respondent. It appears from a reading of Anx.I that, the said impugned decision of the learned Magistrate to take cognizance of the offences and issue summons to Crl.M.C No. 3104 of 2014 3 the accused persons was pursuant to protest compliant filed by the 2[nd] respondent. Initially it appears that, the 2[nd] respondent had filed private criminal complaint, in which the learned Magistrate had issued directions under Sec.156(3) of the Cr.PC, directing the police concerned to register a crime and conduct investigation into the allegations thereon. Pursuant to this, it appears that the FIR leading to the registration of the crime was effected in the police station concerned and thereafter the police has completed the investigation and has filed the final report by way of refer report in this case. it is at that stage it appears that the 2[nd] respondent has filed the impugned Anx.I complaint as a protest complaint, pursuant to which the learned Magistrate has taken cognizance of the offences alleged as per Secs.323, 341, 354, 506(1) read with Sec.34 of the IPC. The petitioner is bereft of many vital details. The details of the first private criminal complaint, FIR so registered, the copy of the final report/refer report thereon, the names of the accused persons in the FIR and the subsequent developments in the protest complaint, etc are not delineated with clarity. Hence, this Court is not in a position to adjudicate the issues raised in this case in an effective and proper manner. Even the name of the police station where the crime has Crl.M.C No. 3104 of 2014 4 been registered is not dissembled with any clarity. 4. The learned counsel for the petitioner would point out that a reading of Anx.I protest complaint would indicate that, the crime would have been registered at Kudiyanmala Police Station, etc. Further the main ground urged by the petitioner is based on limitation bar envisaged in terms of Sec.468 of the Cr.PC. Among the five offences alleged in the impugned criminal proceedings viz, Sec.323, 341, 354, 506(1) read with Sec.34 of the IPC, the maximum imprisonment for offence as per Secs.323, 341, 506(1) does not exceed three years envisaged in Sec.468 (2) (c) of the Cr.PC. However, in the case of Sec.354, as per the amended provision made effective from 03-02-2013, a person who is liable to be punished for the offence as per Sec.354 could be punished with imprisonment of either description for a term, which shall not be less than one year but which may extend to five years, etc. However prior to the said amendment made effective from 03-02-2013, the punishment for this said offence as per Sec.354 could be imprisonment of either description for a term which may extend to two years or with fine or with both etc. The above Crl.M.C has been filed on 09-06-2014, which is after coming into force of the amended provisions of the Crl.M.C No. 3104 of 2014 5 Sec.354 of IPC, which came into effect from 03-02-2013. 5. The learned counsel for the petitioner would point that a reading of Anx.I protest complaint would show that, the date of the alleged incident is on 23-05-2010 at 6.00 p.m and therefore in view of the embargo contained in Clause (1) of Article 20 of the Constitution of India, which stipulates that no person shall be convicted of any offence except for a violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which is might have been inflicted under the law in force at the time of the commission of the offence. 6. On this basis, the learned counsel for the petitioner would point out that since the alleged incident in relation to the alleged offences said to have happened on 23-05-2010, the provision of the Sec.354 of as it is existed prior to the amendment made effective from 03-02-2013 is applicable, in which case the maximum punishment could be only upto two years of imprisonment and that therefore the limitation bar under Sec.468 of the Cr.PC would apply in this case, etc. 7. However, these aspects are also not delineated as proper Crl.M.C No. 3104 of 2014 6 grounds in this Crl.M.C. So also, the learned counsel for the petitioner has made strong submissions that the impugned decision of the learned Magistrate to have taken cognizance on protest compliant, after the submission of the refer report, pursuant to investigation in the crime is in flagrant violation of the legal position well settled by this Court in series of decisions as in _**Parameswaran Nair v. Surendran [2009 (1) KLT 794]**_ , especially in regard to the legal position for the Magistrate Court to take cognizance on protest complaint after the submission of the refer report. But this crucial aspect of the matter, has also not been urged as a ground in this case. 8. Moreover the 2[nd] respondent could raise a legitimate plea that the period from filing of 1[st] private criminal complaint upto date of receipt of notice on refer report could be excluded as per Sec.470 Cr.PC for calculation of the limitation. So it is highly essential to go through the first private criminal complaint, FIR, refer report, notice issued thereon, etc. It that be so, the more relevant ground would be the one directed against the action in taking cognizance in the protest complaint. 9. Since the petitioner is bereft of the vital details more Crl.M.C No. 3104 of 2014 7 particularly, about the institution of the first private criminal complaint, the registration of the FIR and submission of the final report by way of refer report, notice issued thereon etc, it is not proper for this Court to consider the pleas of the petitioner as of now. 10. Liberty is given to the petitioner to file appropriate petition with all the requisite details so as to urge the grounds. It is also apprised this Court that as of now the charges have not been framed and hence trial has not commenced in this case. Liberty is thus accorded to the petitioner to work out his remedies in the manner known to law. However in the interest of justice it is ordered that, further proceedings in C.C No.47/2014 on the file of the Judicial First Class Magistrate Court, Taliparamba, to the extent, it is directed as against the petitioner herien (A1) will stand deferred by a period of six weeks. 11. Before filing any such petition, petitioner may ensure care should be taken to produce copy of the first private criminal complaint, the copies of the FIR in relation thereto and that of the final report by way of refer report, notice issued thereon, statements of the charge witnesses given in the refer report, protest complaint and any other such relevant materials, etc. On the petitioner Crl.M.C No. 3104 of 2014 8 submitting application for certified copies of these documents, the learned Magistrate will immediately furnish those copies to the petitioner. With these observations and directions and with the said liberty the above Criminal Miscellaneous Case will stand disposed of. **Sd/ALEXANDER THOMAS, JUDGE** KAS 9 Crl.M.C No. 3104 of 2014 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** ## **ANNEXURE P1** **ANNEXURE I : TRUE COPY OF THE COMPLAINT FILED BY THE 2ND RESPONDENT BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE, TALIPARAMBA** **RESPONDENT'S/S EXHIBITS: NIL**