Kerala High Court
Satheesh Kumar vs State Of Kerala on 19 January, 2021
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
05.01.2021, THE COURT ON 19.01.2021 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 19th day of January, 2021
ORDER
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 2nd 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
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
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
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
[(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
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 officer-
in-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
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
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
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
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
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
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{á¢
ÉøßçÖÞÇߺîá.åÉøÞÄßAÞøæa ØÞfßµ{áæ¿ æÎÞÝß
ÉøßçÖÞÇߺîá.åPrima facie çµØáæIKí ®ÈßAí
Crl.M.C.No.6064 of 2017
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
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.
