Satheesh Kumar S/o Kuttan Pillai & Sabu S/o Marian Nadar v. State of Kerala & Madhavan Nair

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **TUESDAY, THE 19TH DAY OF JANUARY 2021 / 29TH POUSHA, 1942** ## **Crl.MC.No.6064 OF 2017(G)** **AGAINST THE ORDER/JUDGMENT IN ST 352/2017 IN CMP NO.103/2017 OF GRAMA NYAYALAYA AT PARASSALA, THIRUVANANTHAPURAM** ## **CRIME NO.1050/2016 OF Poovar Police Station , Thiruvananthapuram** ## **PETITIONERS/ACCUSED (A1) & (A2):** - **1 SATHEESH KUMAR S/O.KUTTAN PILLAI, KAMALA NIVAS, KANCHAMPAZHANJI, POOVAR, TRIVANDRUM.** - **2 SABU S/O.MARIAN NADAR, AMARATHU VEEDU,POOVAR, TRIVANDRUM.** **BY ADVS. SRI.R.T.PRADEEP SMT.M.BINDUDAS** ## **RESPONDENTS/STATE & COMPLAINANT:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM-682031. 2 MADHAVAN NAIR S/O.KESAVAN NAIR, VALIYAPURACKAL VEETTIL,KANCHAMPAZHANJI DESOM, POOVAR VILLAGE, TRIVANDRUM-695125.** ## **OTHER PRESENT:** ## **MAYA.M.N- P.P** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 19.01.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C.No.6064 of 2017 2 ## **M.R.ANITHA, J.** ## **--------------------------------Crl.M.C.No.6064 of 2017 --------------------------------Dated this the 19[th] day of January, 2021** ## **O R D E R** Petition has been filed under Section 482 Cr.P.C. seeking to quash all criminal proceedings in pursuance of Annexures -IV, VIII and IX (S.T.No.352/2017 on the file of the Grama Nyayalaya, Parassala). 2. Petitioners are accused in S.T.No.352/2017 on the file of the Grama Nyayalaya, Parassala charged under Sections 447, 427 294(b) r/w. S.34 IPC. The origin of the case relates to registration of crime No.1050/2016 of Poovar police station against the petitioners/accused on the basis of an information furnished by the second respondent/defacto complainant. According to the 2[nd] respondent/defacto complainant petitioners who are the members of political party to which the President of Grama Panchayath, Poovar belong, got perturbed on making a complaint against the President of Panchayath before Vigilance by the defacto complainant. So with a common intention to commit waste in the property of defacto complainant they criminally trespassed Crl.M.C.No.6064 of 2017 3 into the house of the defacto complainant in the early morning on 26.09.2016 at 1 a.m and hurled stones at the house of the defacto complainant causing breaking of, window glass of bedroom of defacto complainant, the light fitted on the sit-out and indicator of the motorbike. The copy of the FIR is produced as Annexure-I. After investigation, the case was referred as false out of some political vengeance. According to the petitioners, the wife of the defacto complainant was denied the seat by LDF in the election to local bodies in the year 2010. That led to the animosity between the defacto complainant and LDF workers. The LDF candidate of Kanchampazhanji Ward won the election in the year 2015 and became the President of the Panchayath. Being annoyed by that the defacto complainant and his wife and son went to the house of the second petitioner and abused him using filthy language and the matter was reported to the police and crime No.1039/2016 was registered against them on 25.09.2016. Thereafter, this false complaint was filed after the defacto complainant and wife themselves breaking the window glass of bedroom, CFL light of the sit-out and indicator of motorbike during the night of 26.09.2016. A copy of the Refer Report is Crl.M.C.No.6064 of 2017 4 produced and marked as Annexure -II. 3. The court below issued notice on the refer report to the defacto complainant/second respondent and copy of the same is produced as Annexure-III. Thereafter, second respondent filed protest complaint and copy of which is produced as Annexure-IV. Thereafter, the court below examined the defacto complainant and two witnesses and took cognizance of the offence and issued process to the petitioners. A copy of the statements of the defacto complainant and witnesses were produced as Annexure-V to VII respectively. Annexure-VIII and IX are the copies of the summons issued to the petitioners 1 & 2. The wife of the defacto complainant filed a complaint before the Human Rights Commission against the petitioners and the petition was closed after conducting an enquiry through Dy.S.P., Narcotic Cell and a Refer Report was filed in that case and a copy of the same is produced and marked as Annexure-X. 4. According to the petitioners the learned Magistrate ought to have accepted the Refer Report and dropped the proceedings. So the criminal proceedings initiated against the petitioners in pursuance of Annexures IV, Crl.M.C.No.6064 of 2017 5 VIII and IX are abuse of process of court and hence the case. 5. Notice was issued to the respondents. First respondent appeared through learned Public Prosecutor. Though notice was served upon the second respondent, there is no appearance on behalf of him. 6. Heard the learned counsel for the petitioners and learned Public Prosecutor on behalf of the respondents. 7. According to the learned counsel for the petitioners, the entire proceedings initiated against them in pursuance of Annexure -IV complaint and Annexures -V, VI, VII statements of the witnesses is not at all sustainable. He would contend that the learned Magistrate has no authority to examine the witnesses and according to him the defacto complainant has only a right of hearing and the entire process of filing a protest complaint and taking evidence of the witnesses etc are against the settled principles of law and hence the entire proceedings by which the process was issued against them is an abuse of process of court and hence is liable to be quashed. 8. To support his contention the learned counsel relies on Bhagwant Singh v. Commissioner of Police and Anr. Crl.M.C.No.6064 of 2017 6 [(1985) 2 SCC 537]. But it appears that the learned counsel was taken away by the head notes of the decision which does not reflect the actual ratio of the decision. The head-notes reads as follows: “Criminal Procedure Code, 1973 - Section 154 and 173 - Person lodging FIR entitled to hearing when on the basis of police report Magistrate prefers to drop the proceedings instead of taking cognizance of offence - Person injured or relative of the person who died in the incident complained of has no such right of hearing except a standing to appear before the Magistrate - Magistrate, of his own discretion can also give notice to them for hearing. …...............................” But paragraph No.4 of the decision actually discussed the law while a report is forwarded by the officer in charge of police station under sub-section (2)(i) of Section 173 Cr.P.C. Which would be discussed later. 9. The two contingencies when a report has been filed by the officer concluding that an offence alleged appears to have been committed by a particular person or persons the option available to the Magistrate and also in cases where the report filed stating that no offence appears to have been committed is filed before the magistrate, the option available to the Magistrate are discussed in detail in the said Crl.M.C.No.6064 of 2017 7 ## paragraph. 10. In this case, admittedly by the petitioners, the officer in charge of the police station filed a refer report finding that the investigation revealed that the cases has been falsely foisted. Copy of the refer report produced as Annexure-III would go to show that the complaint has been referred as false. The copy of the Final report is also produced and marked as Annexure-II. So the option available to the Magistrate when a report is filed stating that no offence appears to have been committed, has been discussed in paragraph No.4 of the above decision, which reads as follows: “4. Now, when the report forwarded by the officerin-charge of a police station to the Magistrate under sub-section (2)(i) of Section 173 comes up for consideration by the Magistrate, one of two different situations may arise. The report may conclude that an offence appears to have been committed by a particular person or persons and in such a case, the Magistrate may do one of three things:(1) he may accept the report and take cognizance of the offence and issue process or (2) he may disagree with the report and drop the proceeding or (3) he may direct further investigation under sub-section (3) of Section 156 and require the police to make a further report. The report on the other hand state that, in the opinion of the police, no offence appears to have been committed and where such a Crl.M.C.No.6064 of 2017 8 report has been made, the Magistrate again has an option to adopt one of three courses: (1) he may accept the report and drop the proceeding or (2) he may disagree with the report and taking the view that there is sufficient ground for proceeding further, take cognizance of the offence and issue process or (3) he may direct further investigation to be made by the police under sub-section (3) of Section 156. Where, in either of these two situations, the Magistrate decides to take cognizance of the offence and to issue process, the informant is not prejudicially affected nor is the injured or in case of death, any relative of the deceased aggrieved, because cognizance of the offence is taken by the Magistrate and it is decided by the Magistrate that the case shall proceed. 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 recognized by the provisions contained in sub-section (2) of Section 154, sub-section (2) of Section 157 and sub-section (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 issue process, because that would be culmination of the First Information Crl.M.C.No.6064 of 2017 9 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 Section 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-section (2)(i) of Section 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. ” 11. So in this case a refer report was filed by the officer in charge of the police station stating the complaint as false and the Magistrate from the proceedings appeared to have not opted to accept the report and accordingly issued notice to the complainant and complainant appeared and filed protest complaint and thereafter statement of the complainant and witnesses were taken. Thereafter summons was issued to the accused. So the question is whether the procedure so adopted by learned Magistrate is legal and proper. Crl.M.C.No.6064 of 2017 10 12. According to the learned counsel for the petitioner, after enquiry on the protest complaint the learned Magistrate without application of mind issued summons to the petitioners/accused in absolute disregard of the well settled principles and hence it is not sustainable. To substantiate his contention the learned counsel took my attention to Parameswaran Nair v Surendran [2009 (1) KLT 794). In that case His Lordship Mr.Justice M.Sasidharan Nambiar as he then was made a detailed probe into the options available to the Magistrate upon receipt of a final report. Paragraphs 18 and 19 of the said decision would be helpful for the determination of the issue raised by the learned counsel. It reads as thus: “18. When the Magistrate issue notice to the complainant on receipt of the final report and grants opportunity to the complainant to show why cognizance of the offence is to be taken and the complainant files a protest complaint, it is to be treated only as his objections to the final report, stating his reasons why the report cannot be accepted, if the Magistrate records his statement and that of the witnesses and decides to take cognizance of the offence, after considering all the materials including the final report made by the police under sub-s. (2) of S.173, it is advisable for the Magistrate to record that the final report is not Crl.M.C.No.6064 of 2017 11 accepted and on the entire materials he is of the opinion that there is ground to proceed and issue summons under S.204 of Code of Criminal Procedure. But the fact that no specific order was recorded that final report is not accepted or fact that the decision to take cognizance of the offence and issue process was recorded in the protest complaint, by themselves are not fatal, if the records show that Magistrate has considered all the relevant materials and applied his mind. If after complying these procedures, an order not to take cognizance is passed by the Magistrate, then a second complaint will lie, only if there was any manifest error or manifest miscarriage of justice in the previous order of the complainant relies on new facts or materials which was not to his knowledge or with reasonable diligence could not have brought forward in the previous proceedings. 19. The order passed by the learned Magistrate is to be considered in the light of the aforesaid principles. The order is blank on whether the decision to take cognizance and issue summons was taken on the materials available in the final report made under S.173(2) or on the materials made available by the complainant in the inquiry under S.200. The order makes it clear that the learned Magistrate has not considered the question on the proper perspective. In such circumstances, the order can only be set aside and the matter remanded for fresh consideration in accordance with law. Revision is allowed. Order passed by the Judicial First Class Magistrate-II, Haripad dated 20.8.2007 in Crl.M.C.No.6064 of 2017 12 C.M.P.899/2007 taking cognizance of the offence is set aside. Magistrate is directed to reconsider the final report made under sub-s.(2) of S.173, after hearing the complainant and the prosecutor and decide whether the final report is to be accepted or not. C.M.P.899/2007 is to be treated as the objection of the complainant to the final report. It is made clear that Magistrate, if satisfied that the final report is not acceptable and an enquiry is to be conducted by himself, is entitled to conduct an enquiry in the original complaint complying the procedures under Ss.200 and 202. Magistrate is also competent to order a further investigation under S.156(3) and decide the matter afresh. If the Magistrate decides to conduct and enquiry on the first complaint on which originally direction was issued for investigation under S.156(3) Magistrate has to decide whether process is to be issued under S.204 on all the materials including the statements recorded in the inquiry and the final report. if Magistrate finds that there are materials to proceed further, then summons can be issued, if it is found that there are no ground to proceed, Magistrate can dismiss the compliant under S.203. The complainant is entitled to bring to the notice of the Magistrate, why the final report cannot be accepted and cognizance is to be taken. At the stage accused has no right to participate.” 13. So the above position would make it clear that on receipt of a refer report when a protest complaint is filed by the complainant it has to be treated only as objection to the Crl.M.C.No.6064 of 2017 13 final report. If the Magistrate records the statement of the complainant and witnesses and decides to take cognizance of the offence after considering all the materials including the final report under sub- s.2 of Sec.173 Cr.P.C., it is advisable for the magistrate to record that the final report is not accepted and on the entire materials he is of the view that there is ground to proceed and issue summons. It is true that the fact that a specific order that final report is not accepted by itself is not fatal if the record show that magistrate has considered all the materials and applied his mind. 14. So before issuing summons to the accused the Magistrate ought to scan through the final report and also the protest complaint and all the other connected materials and has to apply the mind. In this case in order to ascertain whether the Magistrate had made an application of mind with regard to the final report and all the other connected records, order in CMP.103/2017 in ST.352/2017 was called for. On going through the said order it appears as a cryptic order. It reads as follows: “ÉøÞÄßAÞøX ÙÞ¼V. ®ÜïÞ çø¶µ{ᢠÉøßçÖÞÇߺîá.åÉøÞÄßAÞøæa ØÞfßµ{áæ¿ æÎÞÝß ÉøßçÖÞÇߺîá.åPrima facie çµØáæIKí ®ÈßAí Crl.M.C.No.6064 of 2017 14 çÌÞicæMGá. ¿ß çµØí ST. 352/2017 ÈOùÞÏß ËÏÜßW ®¿áJßøßAáKá. dÉÄßµZAí ØÎXØí. Call on 26/07/2017.” 15. From the above, there is nothing to indicate whether the learned Magistrate has accepted or rejected the final report filed under section.173(2)Cr.P.C. Though it is stated in the order that all the documents are examined, it does not reflect from the order. So as has been held in Parameswaran Nair's case referred above the Magistrate has not considered the question in a proper perspective and has not applied her mind while passing the impugned order and hence it is not sustainable and is liable to be quashed. 16. In the result the order in CMP.103/2017 in ST.352/2017 issuing summons to petitioners is quashed and the matter remanded to the court below for fresh consideration in the light of the dictum laid down in 2009 (1) KLT 794 referred above. SD/- **M.R.ANITHA JUDGE** ## **shg** Crl.M.C.No.6064 of 2017 15 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** ## **ANNEXURE I** **TRUE COPY OF F.I.R. DATED 16.9.2016 IN CRIME NO.1050/2016 OF POOVAR POLICE STATION.** **ANNEXURE II** **TRUE COPY OF REFER REPORT DATED 23.12.2016 IN CRIME NO.1050/2016 OF POOVAR POLICE STATION.** **ANNEXURE III** **TRUE COPY OF NOTICE DATED 3.12.2016 TO 2ND RESPONDENT FROM COURT.** **ANNEXURE IV TRUE COPY OF PROTEST COMPLAINT DATED 19.1.2017 IN C.M.P.NO.103/2017.** **ANNEXURE V TRUE COPY OF EXAMINATION OF DE-FACTO COMPLAINANT DATED 9.2.2017.** **ANNEXURE VI TRUE COPY OF EXAMINATION OF WITNESS NO.1 DATED 27.4.2017.** **ANNEXURE VII TRUE COPY OF EXAMINATION OF WITNESS NO.2 DATED 27.4.2017. ANNEXURE VIII TRUE COPY OF SUMMONS ISSUED TO 1ST PETITIONER DATED 26.7.2017.** **ANNEXURE IX TRUE COPY OF SUMMONS ISSUED TO 2ND PETITIONER DATED 26.7.2017.** **ANNEXURE X** **TRUE COPY OF REPORT OF ENQUIRY BY DY.S.P., NARCOTIC CELL IN THE COMPLAINT BEFORE HUMAN RIGHTS COMMISSION WHICH WAS MADE AVAILABLE TO PETITIONER UNDER RIGHT TO INFORMATION ACT BY PROCEEDINGS DATED 9.2.2017.**