Kerala High Court

Ashokan vs The State Of Kerala on 15 January, 2021

Crl.MC.No.1163 OF 2016(E)               1

              IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                  PRESENT

            THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN

     FRIDAY, THE 15TH DAY OF JANUARY 2021 / 25TH POUSHA, 1942

                         Crl.MC.No.1163 OF 2016(E)

  IN CP 6/2016 OF JUDICIAL MAGISTRATE OF FIRST CLASS, NILAMBUR

PETITIONERS/ACCUSED:

       1       ASHOKAN, AGED 51 YEARS
               S/O.AYYAPPUNNI, NAVOORIPARAMBATH HOUSE,
               PULIMUNDA, CHUNGATHARA, MALAPPURAM DISTRICT.

       2       DIVAKARAN, AGED 43 YEARS
               S/O.AYYAPPUNNI, NAVOORIPARAMBATH HOUSE,
               PULIMUNDA, CHUNGATHARA, MALAPPURAM DISTRICT.

       3       UNNIKRISHNAN, S/O.AYYAPPUNNI
               AGED 36 YEARS,
               NAVOORIPARAMBATH HOUSE, PULIMUNDA, CHUNGATHARA,
               MALAPPURAM DISTRICT.

       4       VINI, AGED 30 YEARS
               W/O.UNNIKRISHNAN, NAVOORIPARAMBATH HOUSE,
               PULIMUNDA, CHUNGATHARA, MALAPPURAM DISTRICT.

               BY ADV. SRI.BABU S. NAIR

RESPONDENTS/STATE:

       1       THE STATE OF KERALA
               REPRESENTED BY THE PUBLIC PROSECUTOR,
               HIGH COURT OF KERALA, ERNAKULAM, KOCHI - 682 031.

       2       PADMINI
               W/O.GOPALAN, MANGATTIRI HOUSE, AKAMPADAM P.O,
               NILAMBUR, MALAPPURAM DISTRICT, PIN - 679 329.

               R2   BY   ADV. SRI.K.K.DHEERENDRAKRISHNAN
               R2   BY   ADV. SRI.S.RAJEEV
               R2   BY   ADV. SRI.V.VINAY
               R1   BY   SRI.K.B.UDAYAKUMAR, SR.PP

     THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD            ON
15.01.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 Crl.MC.No.1163 OF 2016(E)              2



                          P.V.KUNHIKRISHNAN, J
                          --------------------------------
                         Crl.M.C No.1163 of 2016
                           -------------------------------
                  Dated this the 15th day of January, 2021


                                 ORDER

This petition under Section 482 Cr.P.C is filed to quash the

proceedings in C.P No.6/2016 on the file of the Judicial First Class

Magistrate Court, Nilambur by which the learned Magistrate

taken cognizance of the offence under Sections 302, 201, 506 and

120B r/w 34 IPC based on a protest complaint.

2. The prosecution case is that the petitioners committed

murder of Ayyappunni aged 85 years. The deceased is the father

of the 2nd respondent. The petitioners 1 to 3 are also the children

of the deceased. The 4th petitioner is the wife of the 3rd petitioner.

3. The police registered Annexure C crime based on a

complaint filed by the 2 nd respondent which was forwarded under

Section 156(3) Cr.P.C. Subsequently after investigation the police

referred the case as a false case. Annexure D is the refer report.

Thereafter, a protest complaint was filed by the 2 nd respondent.

Annexure A is the protest complaint. Based on Annexure A

protest complaint, the learned Magistrate after conducting

preliminary enquiry, took cognizance of the offence under

Sections 302, 201, 506 and 120B r/w 34 IPC. Annexure B is the

proceedings sheet of the learned Magistrate. The order passed

on 23.1.2016 is extracted hereunder:

"Petitioner represented. Perused statements and records. Primafacie case made out. Cognizance taken of the offences u/s.302, 201, 506, 120(b) r/w 34 IPC, against A1-4. Taken on file as C.P 06/2016. Issue summons to accused by registered post with AD."

4. This Criminal Miscellaneous Case is filed to quash

the entire proceedings in C.P No.6/2016 on the file of the

Judicial First Class Magistrate Court, Nilambur.

5. Heard the learned counsel for the petitioners and the

counsel who appeared for the 2nd respondent. I also heard the

learned Public Prosecutor.

6. The learned counsel for the petitioners submitted

that the learned Magistrate erred in taking cognizance based

on the protest complaint without referring the refer report.

The counsel submitted that taking cognizance by the learned

Magistrate without considering the refer report is in violation of

the decisions of this Court in Parameswaran Nair v.

Surendran (2009(1) KLT 794) and Khader v. State of

Kerala (1999(3) KLT 55). The counsel also submitted that

even if the entire allegations are accepted, Annexure A

complaint and Annexure B proceedings by which the learned

Magistrate took cognizance is unsustainable and is an abuse of

process of law.

7. The learned counsel for the 2nd respondent submitted

that in the order dated 20.10.2015 in Annexure B proceedings

it is clearly stated that the complaint is posted along with the

R.C proceedings. Therefore, it is presumed that the learned

Magistrate considered the refer report. The counsel also

submitted that this Court may not interfere to an order taking

cognizance of the offence. The petitioner can raise all his

contentions before the lower court at the appropriate stage.

8. It is an admitted fact that the police investigated this

case and after investigation referred the case as false.

Annexure D is the final report. After referring the case by the

police, Annexure A protest complaint is filed. Thereafter, the

learned Magistrate after conducting enquiry under Section 202

Cr.P.C took cognizance of the offence as per order dated

23.1.2016 in Annexure B proceedings. But in the order dated

23.1.2016 there is nothing to show that the learned Magistrate

considered Annexure D refer report. This Court in Khader's

case (supra) was observed like this:

"7. The Court noted that the scope of enquiry under S.202 is the ascertainment of the truth of 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 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." (Emphasis supplied)

9. Similarly in Parameswaran Nair's case this Court

again considered this and observed like this:

"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 have brought forward in the previous proceedings is adduced. When this is the legal position, it is not lawful to the Magistrate to ignore the final report submitted by the police under S.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."

10. In the light of the above judgments of this Court, the

order taking cognizance by the learned Magistrate without

considering the refer report is not proper. I don't want to make

any observation on merit in this case. According to me, the

procedure adopted by the learned Magistrate in taking

cognizance without considering the refer report is not proper.

It is true that in the order dated 20.10.2015 in Annexure B

proceedings it is stated that "call with connected RC on

28.10.2015". But in the order dated 23.1.2016 by which the

learned Magistrate took cognizance, there is nothing to show

that the refer report was considered by the learned Magistrate.

Therefore, the order dated 23.1.2016 taking cognizance by the