Shibu K.L. v. State of Kerala & Santosh Kumar I.D.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **MONDAY, THE 19[TH] DAY OF DECEMBER 2022 / 28TH AGRAHAYANA,** ## **1944** ## **CRL.MC NO. 8923 OF 2022** **S.C.NO.300/2020 OF SESSIONS COURT (SPECIAL COURT FOR TRIAL** **OF CASES UNDER SC/ST(POA)ACT) CASES, THIRUVANANTHAPURAM** **PETITIONER/A2 :** **SHIBU. K.L., AGED 49 YEARS, S/O. KRISHNAN NAIR, KALPADA SOPANAM VEEDU, MARUTHOOR, KAZHUNADU WARD, KARAKULAM PANCHAYATH, VATTAPPARA VILLAGE, NEDUMANGAD, THIRUVANANTHAPURAM DISTRICT, PIN CODE - 695028 PRESENTLY WORKING AS SUB INSPECTOR OF POLICE, MUSEUM POLICE STATION, THIRUVANANTHAPURAM.** ## **BY ADV SHAJIN S.HAMEED** ## **RESPONDENTS/STATE & COMPLAINANT :** - **1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN CODE - 682031** - **2 SANTHOSH KUMAR I.D., AGED 44 YEARS, S/O.DAMODARAN (LATE), CHULOORKONATHU PUTHUVAL PUTHEN VEEDU, SREEKARYAM, THIRUVANANTHAPURAM DISTRICT, PIN CODE - 695017** ## **BY SRI.G.SUDHEER, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 19.12.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C.No.8923 of 2022 ..2.. ## **A.BADHARUDEEN, J.** **-------------------------------------------------------Crl.M.C.No.8923 of 2022 -------------------------------------------------------Dated this the 19[th] day of December, 2022** ## **O R D E R** This is a petition filed under Section 482 of the Code of Criminal Procedure and the prayer herein is to quash Annexure-C complaint and Annexure-D order in S.C.No.300 of 2020 on the file of Sessions Court(Special Court for the Trial of Cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, Thiruvananthapuram. 2. Heard the learned counsel for the petitioner. On notice, the defacto complainant appeared and he opposed the petition. Crl.M.C.No.8923 of 2022 ..3.. 3. The learned Public Prosecutor also given emphasis to the order taking cognizance. In this matter, in the order of cognizance, the learned Special Judge observed as under: “5. The statements of the complainant and the witnesses do not reveal the ingredients of criminal conspiracy, wrongful confinement, criminal trespass and mischief. 6. The materials available made out offences punishable u/ss.3(1)(r)&(s) of the Act. 7. Respondent No.3 is a member of Scheduled Caste. So, the offence punishable under the Act will not stand against him. 8. Resultantly, the complaint as against respondent No.3 is dismissed u/s.203 Cr.P.C. 9. The complaint as against respondent Nos.1 and 2 is also dismissed in respect of the offences punishable u/ss.120 B, 294(b), 342, 447 & 427 r/w.34 of IPC. 10. Hence, cognizance is taken of the offences punishable u/ss.3(1)(r) & (s) of the Act against respondent Nos.1 and 2.” Crl.M.C.No.8923 of 2022 ..4.. 4. Since it is argued by the learned counsel for the petitioner that nothing stated in the order regarding the fate of the final report filed in the form of refer charge, a report from the learned Special Judge was called for. Accordingly, the learned Special Judge reported as under: “The final report(Refer Report) in Crime No.1423/2016 of Sreekaryam Police Station was filed before this Court on 17.01.2017. On receipt of the same, notice was issued to the defacto complainant. In the meantime, on receipt of the notice from Police, on 17.01.2017 itself, the defacto complainant filed Crl.MP No.254/2017 before this Court seeking one month's time for filing protest complaint against the Final Report(Refer Report) filed by the Investigating Officer. Thereafter, on 14.08.2017, the defacto complainant filed the protest complaint before this Court and the same was numbered as Crl.MP 1677/2017. In the said proceedings, four witnesses were examined and after considering the evidence adduced, on 24.02.2020, cognizance was taken of the offences punishable u/ss 3(1)(r) Crl.M.C.No.8923 of 2022 ..5.. & (s) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities Act), against Accused Nos.1 and 2 and the case was registered as Sessions Case No.300/2020. The complaint as against Accused No.3 was dismissed u/s 203 Cr.PC. A copy of the order dated 24.02.2020 in Crl.M.P.1677/2017 is enclosed for kind perusal. I may further report that no order is seen passed in the Final Report (Refer Report) in Crime No.1423/2013 of Sreekaryam Police Station. 5. The learned counsel also placed a decision of this Court reported in **[2009(1) KLT 794], Parameswaran Nair v. Surendran** wherein, this Court settled the legal propositions, while considering a refer report and a protest complaint and the same are as under: “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 Station under sub-s.(2) of S.173 of Code of Criminal Procedure, if the Magistrate is not inclined to take cognizance of Crl.M.C.No.8923 of 2022 ..6.. 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 discard 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-s.(3) of S.156. (4) Magistrate can take cognizance on the final report itself under S.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-s.(3) of S.156 was earlier ordered and record the statement of the complainant and the witnesses as provided under S.200 and can conduct an inquiry. In that inquiry Magistrate can Crl.M.C.No.8923 of 2022 ..7.. direct investigation by a police officer or such other officer as provided under S.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.” 6. The said decision in paragraph No.18, it has been stated that, 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 Crl.M.C.No.8923 of 2022 ..8.. 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 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. 7. Thus, it appears that the cognizance taken in this matter, in view of the discussion herein above, is perfectly legal and the same requires no Crl.M.C.No.8923 of 2022 ..9.. interference. Further, there are sufficient materials to go for trial, but the accused are at liberty to defend the case in accordance with law. 8. Faced with the situation, the learned counsel sought permission to withdraw this petition. Accordingly, this petition is dismissed as withdrawn, holding that the petition is not sustainable even on merits. Sd/- ## **A.BADHARUDEEN, JUDGE** rkj