Shaji Kumar and others v. State of Kerala and Danamma

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN ``` ``` THURSDAY, THE 1[ST] DAY OF AUGUST 2024 / 10TH SRAVANA, 1946 CRL.MC NO. 7805 OF 2015 ``` ``` CC NO.1541/2013 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I, NEYYATTINKARA ``` ## **`PETITIONERS/ACCUSED 1 TO 8:`** ``` 1A. SHAJI KUMAR ADVOCATE, S/O. APPUKKUTTAN, GEETHA BHAVAN, MARUTHATHOOR, CHAICOTTUKONAM, NEYYATINKARA, THIRUVANANTHAPURAM. ``` - **`2 APPUKUTTAN S/O. RAGHAVA PANICKER, GEETHA BHAVAN, MARUTHATHOOR, CHAICOTTUKONAM, NEYYATINKARA, THIRUVANANTHAPURAM.`** - **`3 RAMACHANDRAN S/O. MADHAVA PANICKER, AKARATHUVILA VEEDU, KADAVATTARAM DESOM, NEYYATINKARA, THIRUVANANTHAPURAM.`** - **`4 NARENDRAN S/O. RAGHAVA PANICKER, AKARATHUVILA VEEDU, KADAVATTARAM DESOM, NEYYATINKARA, THIRUVANANTHAPURAM.`** - **`5 N. NITHEESH S/O. NARENDRAN, AKARATHUVILA VEEDU, KADAVATTARAM DESOM, NEYYATINKARA, THIRUVANANTHAPURAM.`** - **`6 KAMALASANA PANICKER S/O. VELAYUDHAN, CHERIYAKAITHOOKKI VEEDU, KADAVATTARAM DESOM, NEYYATINKARA, THIRUVANANTHAPURAM.`** - **`7 MOHANAN S/O. KAMALASANA PANICKER, CHERIYAKAITHOOKKI VEEDU, KADAVATTARAM DESOM, NEYYATINKARA, THIRUVANANTHAPURAM.`** - **`8 GOPI S/O. VASUDEVAN, KARTHIKA KADAVATTARAM DESOM, NEYYATINKARA, THIRUVANANTHAPURAM.`** - **`BY ADVS.`** ``` SRI.S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN SRI.V.VINAY ``` CrlM.C..No.7805/2015 **2** ## **`RESPONDENT/STATE/COMPLAINANT:`** ``` 1STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031. 2DANAMMA D/O. SUNDARI, POZHIYOOR KAVINKARA PUTHENVEEDU, KANDALA, MARANALLOOR VILLAGE, NEYYATINKARA, THIRUVANANTHAPURAM. BY ADVS. SHRI.AJIT G ANJARLEKAR SRI.GOVIND PADMANAABHAN SRI.MANU V. SRI.RAM MOHAN.G. SRI.G.P.SHINOD ``` ``` THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 01.08.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` CrlM.C..No.7805/2015 **3** **P.V.KUNHIKRISHNAN, J. -------------------------------Crl.M.C. No.7805 of 2015 ---------------------------------------------Dated this the 01[st] day of August, 2024** ## **ORDER** This criminal miscellaneous case is filed to quash the proceedings in C.C.No.1541/2013 on the file of the Judicial First Class Magistrate Court-I, Neyyatinkara. It is a private complaint filed by the 2[nd] respondent, as evident by AnnexureIII. 2. The short point raised by the petitioners is that based on same set of facts, Police registered a case and referred the matter, as evident by Annexure-II, as false. Thereafter the learned Magistrate entertained Annexure-III protest complaint without adverting to the finding of the Police in Annexure-II refer report. Therefore it is submitted that the order taking cognizance is illegal. It is also submitted by the petitioners that even if the entire allegations are accepted in Annexure-III protest complaint, the same will not attract the offence. The counsel for the petitioners further CrlM.C..No.7805/2015 **4** submitted that in the light of the judgment dated 19.06.2024 in RSA No.450/2009, the prosecution is not maintainable. 3. Heard the learned counsel for the petitioners and the learned counsel for the 2[nd] respondent. I also heard the learned Public Prosecutor. 4. This Court considered the contention of the petitioners and the 2[nd] respondent. Annexure-IV is the order taking cognizance based on Annexure-III complaint. When the Police registered a case and referred the matter on the same set of facts, while entertaining a protest complaint, it is the duty of the learned Magistrate to look into the refer report also. This Court in **Parameshwaran Nair v. Surendran** [2009 (1) KLT 794] considered this point in detail. The relevant portion of the above judgment is extracted hereunder: “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 CrlM.C..No.7805/2015 **5** have brought forward in the previous proceedings is adduced. When this is the legal position, it is notlawful 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.” 5. Similarly in **Kader v. State of Kerala** [1999 (3) KLT 55], this Court considered the same point which is extracted hereunder: “7. The Court noted that the scope of enquiry under S.202 is the ascertainment of the truth or falsity of the allegations made in the complaint on the materials placed by the complainant before the Court for the limited purpose of finding out whether the prima facie case for issue of process has been made out and for deciding the question purely from the point of view of the complainant without at all adverting to any defence that the accused may have. Nevertheless, the Court has a duty to protect the interest of the absent accused also because at the particular stage, the accused has no say in the matter and the matter is decided without notice to him. It is, therefore, open to the Magistrate to scrutinise carefully the allegations made in the complaint with a view to prevent the accused CrlM.C..No.7805/2015 **6** therein from being called upon to face obviously frivolous complaint and to find what material there is to support the allegations made in the complaint. The Magistrate has a duty not only to bring to book a person or persons against whom grave allegations are made in the complaint but also to protect the interest of the absent accused in such matters. What all matters he should take into consideration to arrive at the conclusion that he should take cognizance of the offence, will depend upon the facts and circumstances of each case. He has necessarily to consider the allegations made in the complaint and the statement of the complainant recorded under S.200 Cr.P.C. as also of the witnesses examined under S.202 of the Cr.P.C. Along with that, he has also to consider the result of enquiry or investigation, if any, held by the police. It cannot be said that the said data is not an essential factor. The consideration of the materials under S.202 of the Cr.P.C. is not an empty formality and cannot be done in a perfunctory or mechanical manner or by adopting a superficial approach.” 6. The counsel for the petitioners submitted that in the light of the judgment dated 19.06.2024 in RSA No.450/2009, the prosecution is not maintainable. I do not want to make any observation about the same. The learned CrlM.C..No.7805/2015 **7** Magistrate will consider the same. The order taking cognizance can be set aside and there can be a direction to the learned Magistrate to reconsider the matter in the light of the refer report and in the light of the principle laid down by this Court in **Parameshwaran Nair’s case** (supra) and **Kader’s case (supra)** . Therefore, this Criminal Miscellaneous case is disposed of with following directions: 1. Annexure-IV is set aside. 2. The Judicial First Class Magistrate Court, Neyyatinkara is directed to reconsider the matter in the light of Annexure-II refer report and also in the light of the principles laid down by this Court in **Parameshwaran Nair v. Surendran** [2009 (1) KLT 794] and **Kader v. State of Kerala** [1999 (3) KLT 55]. JV sd/- **P.V.KUNHIKRISHNAN JUDGE** CrlM.C..No.7805/2015 **8** ## **`APPENDIX OF CRL.MC NO. 7805 OF 2015`** ``` ANNEXURE-I TRUE COPY OF THE FINAL REPORT IN CRIME NO.98/2011 OF NEYYATINKARA POLICE STATION PENDING AS CC NO.741/2011 BEFORE JFCM-I, NEYYATINKARA ``` ``` ANNEXURE-II TRUE COPY OF THE REFER REPORT IN CRIME NO.184/2011 OF NEYYATINKARA POLICE STATION ``` ``` ANNEXURE-III CERTIFIED COPY OF THE COMPLAINT SUBMITTED BY THE 2ND RESPONDENT ``` ``` ANNEXURE-IV TRUE COPY OF THE ORDER DATED 5.11.2013 OF JUDICIAL MAGISTRATE OF FIRST CLASS-I, NEYYATINKARA ``` ``` ANNEXURE-V TRUE COPY OF THE REPORT OF AMIN IN EP NO.358/1986 OF II ADDITIONAL MUNSIFF'S COURT, NEYYATINKARA ``` ``` ANNEXURE-VI TRUE COPY OF THE REPORT OF ADVOCATE COMMISSIONER DATED 10.06.1996 ```