Anoop K.R vs The State Of Kerala
2021 Latest Caselaw 12566 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                THE HONOURABLE MR. JUSTICE SUNIL THOMAS
     WEDNESDAY, THE 26TH DAY OF MAY 2021 / 5TH JYAISHTA, 1943
                        CRL.MC NO. 1683 OF 2021
     AGAINST THE ORDER/JUDGEMENT IN CRMP 376/2021 OF JUDICIAL
         MAGISTRATE OF FIRST CLASS -II, ALUVA, ERNAKULAM
PETITIONER/S:

          ANOOP K.R.,
0




          AGED 26 YEARS,
          S/O. RAHIM, KUTTIYARA HOUSE, MANJALY, ERNAKULAM DIST

          BY ADV M.J.SANTHOSH



RESPONDENT/S:

          THE STATE OF KERALA
0




          REP BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA




          PP SMT.MAYA M.N



THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
26.05.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 CRL.MC NO. 1683 OF 2021


                                     -2-




                                  JUDGEMENT

The petitioner herein is the complainant in C.M.P No.376/2021 on the

files of the Judicial First Class Magistrate-II, Aluva. It was alleged by him

that, on 04.02.2021 at 10.30 p.m., while he was proceeding along with his

friend on a motor cycle, he was intercepted by the respondents in the above

application, abused him and threw chilly powder on their face and he was hit

on the head with a weapon. He was assaulted on various parts of body and

injured. In the meanwhile, it seems that one Ragesh, who was with the

assailants, sustained stab injuries. Thereafter, the 1st accused telephoned the

father of the petitioner and informed that his son has been stabbed and may

be taken to the hospital. On a wrong belief that it was the petitioner who had

stabbed Ragesh, crime was registered against him. The petitioner who was

admitted in the hospital was arrested after releasing from the hospital. In the

complaint, it was alleged that, in spite of complaint to the police, no action

was taken and hence, the private complaint was laid. Along with the private

complaint, names of few witnesses including the eye witnesses were referred

to. He produced five documents including the discharge summary given from CRL.MC NO. 1683 OF 2021

the hospital. The court below posted the case for enquiry as is evident from

Annexure A2 order dated 09.03.2021. Aggrieved by the above order, the

petitioner has approached this Court.

2. Heard the learned Counsel for the petitioner and the learned Public

Prosecutor.

3. The specific contention of the learned Counsel for the petitioner was

that, though the authority of the Court below whether to exercise the

jurisdiction under Section 156(3) Cr.P.C or to proceed for an enquiry, is

absolutely within the domain of the learned Magistrate, in a case of this

nature, the Court should have opted for invoking jurisdiction under Section

156(3) Cr.P.C. rather than calling upon the petitioner to adduce evidence.

There were several matters which were within the reach of the petitioner and

only proper investigation would have revealed or divulged such materials.

Learned Counsel also referred to the decision of this Court in Asha v.

P.K.Joseph and Another 2019 (3) KHC 219, paragraph 29, to

supplement his contention. It was stated therein the above reported

judgment that, once a cognizable evidence is made out, learned Magistrate

shall normally order investigation under Section 156(3) Cr.P.C. to the police

rather than wasting the precious time of the Court, since conducting a proper CRL.MC NO. 1683 OF 2021

investigation once a cognizable offence is made out, falls within the domain of

the investigating police. To that extend, the Court below exercised the

jurisdiction wrongly, it was contended.

3. It is pertinent to note that, there are materials to show that the

petitioner had sustained head injury with mildly displaced comminuted

fracture on the left frontal bone and had undergone treatment in a hospital

from 05.02.2021 to 09.02.2021, evident from Annexure A3. Though he may

be able to adduce oral evidence to support his case, there seems to be some

matters which are crucial in nature, the evidence of which may be beyond the

reach of the petitioner. It includes scene mahazar, the recovery of the weapon

and also the call details to substantiate his contention that a call was made to

his father on his mobile.

4. Having considered these fact, I feel that the Court below failed to take

into consideration these relevant factors before proceeding to pass Annexure

A2 order. It seems to be passed mechanically without proper application of

mind. Having considered this I am inclined to set aside Annexure A2 order

and direct the learned Magistrate to consider the complaint in the above

perspective and in the light of the decision reported in Asha's case (supra) as

well as the decision of the Honourable Supreme Court in Devarapalli CRL.MC NO. 1683 OF 2021

Lakshminarayana Reddy v. V.Narayana Reddy 1976 KHC 818

(SC) and to pass fresh orders accordingly.

The Crl.M.C is accordingly allowed.

Sd/-

SUNIL THOMAS JUDGE

uu 26.05.2021 CRL.MC NO. 1683 OF 2021

APPENDIX ANNEXURE/EXHIBITS

ANNEXURE P1 THE TRUE COPY OF THE COMPLAINT IN CMP NO.376/2021 DATED 09.03.2021

ANNEXURE P2 THE TRUE COPY OF ORDER IN CMP NO.376/2021 DATED 09.03.2021

ANNEXURE P3 THE TRUE COPY OF DISCHARGE SUMMARY DATED 9.2.2021

ANNEXURE P4 THE TRUE COPY OF PHOTOGRAPHS OF INJURIES SUSTAINED BY THE PETITIONER

ANNEXURE P5 THE COPY OF JUDGMENT IN 2019(3) KLT 13 ASHA VS JOSEPH

ANNEXURE P6 THE COPY OF JUDGMENT IN DEVARAPALLI LAKSHINARAYANA REDDY AND OTHERS V V.NARAYANA REDDY AND OTHERS AIR 1976 SC 1672