Sivasankarapillai and RadhaKrishnapillai v. State of Kerala

``` INTHEHIGHCOURTOFKERALAATERNAKULAM PRESENT THEHONOURABLEMR.JUSTICERAJAVIJAYARAGHAVANV THURSDAY,THE27[TH]DAYOFJULY2023/5THSRAVANA, 1945 ``` ## **`CRL.MC NO. 2421 OF 2022 AGAINST THE ORDER/JUDGMENT ST 277/2021 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I, KOLLAM`** ## **`PETITIONERS:`** ``` 1SIVASANKARAPILLAI AGED67YEARS,S/o.MADHAVANPILLAI, THEERTHAM,CHEMMAKKADCHERRY,PANAYAMVILLAGE, - PERINADP.O.,ANCHALUMOOD,KOLLAM,PIN690601 2RADHAKRISHNAPILLAI AGED68YEARS,S/o.RAMAKRISHNAPILLAI, THADATHIVILAVEEDU,PUNNATHALACHERRY,NEAR THIRUMULLAVARAMTEMPLE,KOLLAMWESTVILLAGE, - THIRUMULLAVARAMP.O.,KOLLAM,PIN691012 ``` ``` BYADVS. B.MOHANLAL P.S.PREETHA SHINEN.S KARTHIKJSEKHAR ``` ## **`RESPONDENTS:`** ``` 1STATEOFKERALAREPRESENTEDBYTHEPUBLIC PROSECUTOR - HIGHCOURTOFKERALA,ERNAKULAM,KOCHI,PIN 682031 ``` ``` 2THESTATIONHOUSEOFFICER ANCHALUMOODPOLICESTATION,ANCHALUMMOODP.O., - KOLLAM,PIN691601 ``` Crl.M.C. No.2421 of 2022 2 ``` 3SMT.LATHIKABHAI KRISHNAVILASOMVEEDU,CHEMMAKKADCHERRY,PANAYAM - VILLAGE,PERINADP.O.,KOLLAM,PIN691601 ``` ``` BYADVS.ANEESH ``` ``` SRI.VIPINNARAYAN,SR.PP ``` ``` THISCRIMINALMISC.CASEHAVINGCOMEUPFOR ADMISSIONON27.07.2023,THECOURTONTHESAMEDAY PASSEDTHEFOLLOWING: ``` Crl.M.C. No.2421 of 2022 3 ## **ORDER** The petitioners herein are the accused, Nos. 1 and 2 in S.T. No.277/2021 on the file of Judicial First Class Magistrate Court-I, Kollam. The aforesaid case was registered based on a protest complaint lodged by the party respondent before the learned Magistrate. They have approached this Court seeking to quash the order by which the learned Magistrate has proceeded to take cognizance of the matter. 2. Sri. B. Mohan Lal, the learned counsel appearing for the petitioners, points out that Annexure A1 FIR was originally registered on 19.06.2016, in respect of an incident that took place on June 9, 2016. The allegation in the FIR is that on June 9, 2016, at 1:00 AM, the petitioners herein demolished the boundary wall situated on the eastern side of the informant's property and caused a loss of Rs. 2 lakhs. The learned counsel submits that the police conducted an investigation and filed a closure report with the learned Magistrate. The police, after conducting the investigation, were of the view that the wall situated on the eastern side of the property had come down due to heavy rain on 9.06.2016, and not due to any act committed by the petitioners herein. Thereafter, the 2nd Crl.M.C. No.2421 of 2022 4 respondent submitted a protest complaint with the learned Magistrate. According to the learned counsel, a perusal of Annexure-A6 order sheet reveals that the Magistrate did not consider all of the materials and failed to apply his mind. The learned counsel argues that a second complaint would only be valid if there were a manifest error or manifest miscarriage of justice in the previous order or if the complainant relied on new facts and materials that were not known to them or could not have been brought forward with reasonable diligence in the previous proceedings. The learned counsel points out that the order dated 26.02.2021 does not specify whether the decision to take cognizance and issue summons to the accused was based on the materials available in the final report filed under Section 173(2) of the Cr.P.C. or on all of the materials provided by the complainant during the inquiry under Section 200 of the Cr.P.C. To support his argument, the learned counsel has cited the following cases: - a. **Parameswaran Nair v. Surendran and Anothe** r (2009 (1) KLT 794) - b. **Satheeshkumar v. State of Kerala** (2021 KHC 3374) - c. **Sibi Cheriyan v. State of Kerala** (2022 KHC 2865) Crl.M.C. No.2421 of 2022 5 3. The learned counsel appearing for the party respondent submitted that the order passed by the learned Magistrate do not warrant any interference. 4. I have considered the submissions advanced and have gone through the order. 5. Annexure A6 is the order sheet passed in C.M.P. No.793/2019 as per which the learned Magistrate as per the proceedings dated 26/02/2021, has ordered as under: “Heard perused these records, satisfied that there are grounds to proceed against the accused u/s 447, 427 r/w 34 IPC case taken on the file as ST No.277/2021, Summons to accused, call on 11.06.2021.” 6. The question is whether the procedure adopted by the learned Magistrate is in accordance with law. 7. In paragraph Nos.18 and 19 of **Parameswaran Nair** (Supra), the procedure to be followed by the learned Magistrate after submission of the refer report by the police has been detailed. “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 Crl.M.C. No.2421 of 2022 6 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 Section 2 of Section 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 Section 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 or 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 Section 173(2) or on the materials made available by the complainant in the inquiry under Section 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.” Crl.M.C. No.2421 of 2022 7 8. A perusal of the order passed by the learned Magistrate would show that 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 Section 173(2) or on the materials made available by the complainant in the inquiry under Section 200. The order makes it clear that the learned Magistrate has not considered the question from the proper perspective. In that view of the matter, I am of the view that interference is warranted. This petition will stand allowed. The order dated 26/02/2021 taking cognizance of the offence against the accused, is set aside. The learned Magistrate is directed to reconsider the matter in the light of the refer report under section 173(2) in the light of the observations in **Parameswaran Nair** (Supra). Sd/- **RAJA VIJAYARAGHAVAN V, JUDGE** ANB Crl.M.C. No.2421 of 2022 8 ## **`APPENDIX OF CRL.MC 2421/2022`** ## **`PETITIONER ANNEXURES`** ``` AnnexureA1THECERTIFIEDCOPYOFTHEFIRANDFIS CRIMENO.1189/2016OFANCHALUMMODU POLICESTATIONINKOLLAMDISTRICT AnnexureA2THETRUECOPYOFTHEORDERINM.C NO.1299/2016DATED09.08.2016ISSUEDBY THERDO,KOLLAM AnnexureA3THETRUECOPYOFTHEORDER NO.K.DIS.14539/16/HDATED20.02.2020 ISSUEDBYTHERDO,KOLLAM AnnexureA4THECERTIFIEDCOPYOFTHEREFERCHARGE DATED23.06.2016SUBMITTEDBYTHE2ND RESPONDENTBEFORETHEJUDICIALFIRST CLASSMAGISTRATECOURT-I,KOLLAMIN ANNEXURE-A1CRIME AnnexureA5THECERTIFIEDCOPYOFTHEPROTEST COMPLAINTC.M.P.NO:793/2019INREFER CHARGENO:162/17DATED19.03.2019FILED BYTHE3RDRESPONDENTBEFORETHEJUDICIAL FIRSTCLASSMAGISTRATECOURT-I,KOLLAM AGAINSTANNEXURE-A4ORDER AnnexureA6THECERTIFIEDCOPYOFORDERSHEETIN C.M.P.NO:793/19(S.T.NO.277/2021)ONTHE FILEOFTHEJUDICIALFIRSTCLASS MAGISTRATECOURT-I,KOLLAMDATED 19.06.2016 ```