Abdul Jabbar vs State Of Kerala
2022 Latest Caselaw 11453 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
             THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
    FRIDAY, THE 9TH DAY OF DECEMBER 2022 / 18TH AGRAHAYANA, 1944
                       CRL.MC NO. 233 OF 2018
 [TO QUASH PROCEEDINGS IN C.C.NO.1619/2016 ON THE FILE OF THE CHIEF
               JUDICIAL MAGISTRATE COURT, THALASSERY]
PETITIONERS/ACCUSED NO.1, 3 TO 6:

     1     ABDUL JABBAR,AGED 60 YEARS,S/O.KUNHU MUHAMMED,MAMMAYIL
           THEKKEPURAYIL VEEDU,P.O.MATTOOL.
     2     KRISHNA KUMAR
           ACCOUNTANT,PRESTIGE EDUCATIONAL TRUST & KANNUR,MEDICAL
           COLLEGE & SUPERFICIALITY HOSPITAL,P.O.ANCHARAKKANDY.
     3     KRISHNAN
           ADMINISTRATOR,PRESTIGE EDUCATIONAL TRUST & KANNUR MEDICAL
           COLLEGE & SUPERFICIALITY HOSPITAL,P.O.ANCHARAKKANDY.
     4     SAHADEVAN
           OFFICE STAFF,PRESTIGE EDUCATIONAL TRUST & KANNUR MEDICAL
           COLLEGE & SUPERFICIALITY HOSPITAL,P.O.ANCHARAKKANDY.
     5     SANGEETH
           OFFICE STAFF,PRESTIGE EDUCATIONAL TRUST & KANNUR,MEDICAL
           COLLEGE & SUPERFICIALITY HOSPITAL,P.O.ANCHARAKKANDY.
           BY ADVS.
           SRI.S.RAJEEV
           SRI.K.K.DHEERENDRAKRISHNAN
           SRI.D.FEROZE
           SRI.V.VINAY


RESPONDENTS/STATE AND COMPLAINANT:

     1     STATE OF KERALA REP.BY PUBLIC PROSECUTOR,HIGH COURT OF
           KERALA,ERNAKULAM-682031.
     2     P.T.TOMY,AGED 47 YEARS,S/O.THOMAS,PERUNNAKKOT
           HOUSE,KOOTHUPARAMBA AMSOM,AMBILADU
           DESOM,THALASSERY,NIRMALAGIRI P.O,KANNUR-670701.
           R1 BY SMT. SEENA C. PUBLIC PROSECUTOR
           R2 BY SHRI P.T.TOMY(PARTY-IN-PERSON)
     THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 8.12.2022
THE COURT ON 9.12.2022 PASSED THE FOLLOWING:
 CRL.MC No.233 of 2018                 2




                                O R D E R

to 6 in C.C.No.1619/2016 on the file of the Chief

Judicial Magistrate Court, Thalassery. The

cognizance was taken by the learned Magistrate in

the above case on Annexure-1 complaint submitted

by the 2nd respondent, which was numbered as

Crl.M.P.No.5619/2015. The offences alleged are

punishable under Sections 120B, 420, 465, 468, 471

r/w. Section 34 of the Indian Penal Code (IPC).

2. The allegation against the petitioners and

other accused are as follows:

Accused are the persons managing the affairs

of the Kannur Medical College. The petitioners

entered into a contract with the 2nd

respondent/complainant to supply necessary

manpower for filling up the vacancies of security

staff and other similar workers in the said

Medical College for a period of one year. Later,

the said period was extended by the management.

According to the complainant, based on certain

complaints filed by the workers allegedly engaged

by the complainant, the Labour Officer, Kannur,

issued notice to him seeking his explanation. When

the said notice dated 24.01.2014 was received, the

2nd respondent approached the 1st accused with the

said notice, and he assured that he would look

after the matters with respect to the said notice

and thereby pacified him. Later, he received

another notice on 01.02.2014 wherein the 2nd

respondent/complainant was required to appear

before the Labour Officer on 10.02.2014. Upon

appearing before the Labour Officer on that date,

it came to the notice of the 2nd respondent that,

as per the records maintained in the District

Labour Office, the 2nd respondent/complainant

submitted reply notices to the Labour Officer. The

case of the 2nd respondent/complainant is that such

reply notices were never issued by him, and the

same were forged. The complaint was submitted in

such circumstances and after conducting an inquiry

under Section 202 of Cr.PC, the learned Magistrate

had taken cognizance of the same as per the order

dated 30.11.2016. This Crl.M.C is filed in such

circumstances for quashing all further proceedings

pursuant to Annexure-A1 complaint.

3. Heard Sri.S. Rajeev, the learned counsel

for the petitioners, Smt.Seena C., the learned

Public Prosecutor for the State and the 2nd

respondent, who appeared in person.

4. One of the crucial contentions put forward

by the learned counsel for the petitioners is

that, even if the allegations contained in the

complaint are taken as correct, no offence against

the petitioners would be attracted. It is further

contended that, the complaint was not submitted by

following the procedure contemplated by the

Hon'ble Supreme Court in the decision reported in

Priyanka Srivastava v. State of U.P.[2015(2)KLT

451(SC)], wherein it was stipulated that the

complaint has to be accompanied by an affidavit in

support of the allegations. It is also contended

that, while taking cognizance of the complaint,

there was no proper application of mind by the

learned Magistrate, and the order by which the

cognizance was taken does not reflect the

satisfaction of the learned Magistrate as to

whether the offences are attracted or not.

5. On the other hand, the 2nd respondent who

appeared in person, opposes the said contention by

pointing out that the learned Magistrate had taken

cognizance of the offence after recording his

statement, and under no circumstances can the same

be interfered with. It is pointed out that the

contentions raised by the petitioners with regard

to the ingredients of the offence are a matter

which has to be considered during the course of

trial and the same is beyond the scope of the

proceedings under Section 482 Cr.PC.

6. I have gone through the materials placed on

record. As mentioned above, one of the most

crucial contentions raised by the petitioners is

that, while taking cognizance of the Annexure-A1

complaint, there was no proper application of mind

by the learned Magistrate. The order by which the

learned Magistrate took cognizance was passed on

30.11.2016 which reads as follows:

"Cognizance states u/s 120B, 420, 465, 468, 471 r/w. 34 IPC. Taken on file as CC 1619/2016. Summons to accused by Registered Post."

7. On going through the aforesaid order,

I find some force in the contention put forward by

the learned counsel for the petitioners. This is

mainly because it is a well settled position of

law that, while taking cognizance, the order must

reflect that the learned Magistrate has applied

his mind to the facts of the case. In Pepsi Foods

Ltd. and Another v. Special Judicial Magistrate

and Others [(1998)5 SCC 749], it was observed by

the Hon'ble Supreme Court as follows:

"28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused."

The Hon'ble Supreme Court in Birla Corporation

Ltd. and Another v. Adventz Investments and

Holdings Ltd. and Others [(2019)16 SCC 610] it was

observed in paragraph 34 of the said decision as

follows:

"34. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. The application of mind has to be indicated by disclosure of mind on the satisfaction. Considering the duties on the part of the Magistrate for issuance of summons to accused in a complaint case and that there must be sufficient indication as to the application of mind and observing that the Magistrate is not to act as a post office in taking cognizance of the complaint, in Mehmood Ul Rehman, this Court held as under:- "22. ....the Code of Criminal Procedure requires speaking order to be passed under Section 203 Cr.P.C. when the complaint is dismissed and that too the reasons need to be stated only briefly. In other words, the Magistrate is not to act as a post office in taking cognizance of each and every complaint filed before him and issue process as a matter of course. There must be sufficient indication in the order passed by the Magistrate that he is satisfied that the allegations in the complaint constitute an offence and when considered along with the statements recorded and the result of inquiry or report of investigation under Section 202 Cr.P.C., if any, the accused is answerable before the criminal court, there is ground for proceeding against the accused under Section 204 Cr.P.C., by issuing process for appearance. The application of mind is best demonstrated by disclosure of mind on the satisfaction. If there is no such indication in a case where the Magistrate proceeds under Sections

190/204 Cr.P.C., the High Court under Section 482 Cr.PC. is bound to invoke its inherent power in order to prevent abuse of the power of the criminal court. To be called to appear before the criminal court as an accused is serious matter affecting one's dignity, self- respect and image in society. Hence, the process of criminal court shall not be made a weapon of harassment."

In the light of the aforesaid observations made by

the Hon'ble Supreme Court and the principles laid

down therein, it was obligatory on the part of the

learned Magistrate concerned to record the reasons

for taking cognizance. The satisfaction to issue

summons based on the appreciation of materials

produced along with the complaint has to be

reflected in the order of taking cognizance. It is

not necessary that at the stage of issuance of

process to the accused, a detailed order is to be

passed. However, the order must contain the

materials explaining the reasons for arriving at

the satisfaction briefly.

8. When taking into account the order passed

by the learned Magistrate in this case by which

cognizance was taken, I am of the view that, the

same does not indicate any satisfaction on the

part of the learned Magistrate as to the materials

placed on record and the adequacy of the same for

taking cognizance. It appears that the cognizance

was taken in a mechanical manner which is not

permissible in the light of the principles laid

down by the Hon'ble Supreme Court. In such

circumstances, the matter requires to be

reconsidered and, therefore, the order of taking

cognizance, which is produced as Annexure-V in

this Crl.M.C., is set aside, and the matter is

remanded back to the learned Magistrate to re-

consider the same. It is further clarified that,

as the petitioners specifically raised a

contention that the filing of the complaint was

without complying with the requirements stipulated

by the Hon'ble Supreme Court in Priyanka

Srivastava's case (supra), while re-considering

the complaint, the said aspect shall also be taken

into consideration.

This Crl.M.C. is disposed of subject to the

above.

Sd/-

ZIYAD RAHMAN A.A.

JUDGE pkk

APPENDIX OF CRL.MC 233/2018

PETITIONERS' ANNEXURES ANNEXURE I CERTIFIED COPY OF THE COMPLAINT SUBMITTED BY THE 2ND RESPONDENT ANNEXURE II TRUE COPY OF THE AGREEMENT DATED 31.10.2011 EXECUTED BETWEEN THE MANAGEMENT AND THE 2ND RESPONDENT ANNEXURE III TRUE COPY OF THE REGISTRATION CERTIFICATE DATED 10.10.2012 ISSUED IN FAVOUR OF THE 2ND RESPONDENT.

ANNEXURE IV A TRUE COPY OF THE LETTER ISSUED BY THE 2ND RESPONDENT TO THE CHAIRMAN, KANNUR MEDICAL COLLEGE.

ANNEXURE V CERTIFIED COPY OF THE ORDER TAKING COGNIZANCE IN C.C.NO.1619/2016 DATED 30.11.2016 ANNEXURE VI TRUE COPY OF THE LETTER DATED 11.12.2013

RESPONDENTS' ANNEXURES ANNEXURE R2(A) JUDGMENT DT.12.01.2017 OF CJM, COURT, THALASSERY ANNEXURE R2(B) JUDGMENT DATED 16.3.2017 OF CJM COURT, THALASSERY ANNEXURE R2(C) JUDGMENT DT.5.6.2018 OF CJM COURT, THALASSERY ANNEXURE R2(D) LETTER DT.28.2.2018 ISSUED BY DISTRICT POLICE CHIEF, KANNUR ANNEXURE R2(E) LETTER DT.5.3.2018 ISSUED BY DY. S.P., KANNUR ANNEXURE R2(F) LETTER DT.15.3.2018 ISSUED BY SHO, CHAKKARAKKAL PS ANNEXURE A1 APPOINTMENT LETTER ISSUED BY THE PETITIONER NO.3 TO THE RESPONDENT AS THE MANAGER OF PARK ROYALE HOTEL ANNEXURE A2 COMPROMISE DOCUMENT EXECUTED BY THE RESPONDENT ON BEHALF OF HOTEL PARK ROYALE ENTRUSTED BY THE MANAGEMENT ANNEXURE A3 RECEIPT ISSUED BY THE CENTRAL POLICE STATION, ERNAKULAM TO THE RESPONDENT ON A COMPLAINANT GIVEN ON BEHALF OF HOTEL PARK ROYALE ANNEXURE A4 COMMUNICATION AND REPLY FOR THE COMPLAINT GIVEN BY RESPONDENT IN THE CHAKKARAKKAL POLICE STATION, DY.S.P. OFFICE THALASSERY, S.P.OFFICE KANNUR AND HOME MINISTER ANNEXURE A5 REPLY FOR THE COMPLAINT GIVEN BY RESPONDENT

IN THE CHAKKARAKKAL POLICE STATION, DY.SP OFFICE THALASSERY, S.P.OFFICE, KANNUR AND HOME MINISTER ANNEXURE A6 COPY OF THE CHEQUE SIGNED AND ISSUED BY THE PETITIONER NO.2 AND 4 TO THE RESPONDENT FOR CLEARING SALARY FOR CLEANING EMPLOYEES OF ANJARAKANDY MEDICAL COLLEGE ANNEXURE A7 COPY OF THE CHEQUE SIGNED AND ISSUED BY THE PETITIONER NO.2 & 4 TO THE RESPONDENT FOR CLEARING SALARY FOR CLEANING EMPLOYEES OF ANJARAKANDY MEDICAL COLLEGE, WITH SERVICE TAX.

ANNEXURE A8 COPY OF THE CHEQUE SIGNED AND ISSUED BY THE PETITIONER NO.2 TO RESPONDENT FOR CLEAR THE WAGES OF CLEANING STAFF OF ANJARAKANDY MEDICAL COLLEGE ANNEXURE A9 COPY OF THE CHEQUE SINGED AND ISSUED BY THE PETITIONER NO.1 TO THE RESPONDENT FOR CLEARING THE WAGES OF CLEANING STAFF OF ANJARAKANDY MEDICAL COLLEGE ANNEXURE A10 COPY OF THE CHEQUE SIGNED AND ISSUED BY THE PETITIONER NO.2 AND 4 TO THE RESPONDENT FOR CLEARING THE WAGES OF CLEANING STAFF OF ANJARAKANDY MEDICAL COLLEGE.

ANNEXURE A11 COPY OF THE CHEQUE SIGNED AND ISSUED BY THE PETITIONER NO.2 & 4 TO THE RESPONDENT FOR CLEARING THE WAGES OF CLEANING STAFF OF ANJARAKANDY MEDICAL COLLEGE ANNEXURE A12 COPY OF THE CHEQUE SIGNED AND ISSUED BY THE PETITIONER NO.2 AND 4 TO THE RESPONDENT FOR CLEARING THE WAGES OF CLEANING STAFF OF ANJARAKANDY MEDICAL COLLEGE ANNEXURE A13 DOCUMENT SHOWING PAYMENT LIST OF EMPLOYEES ISSUED BY THE PETITIONER 2 AND 4 FOR THOSE EMPLOYEES NOT PARTICIPATING EMPLOYEES STRIKE ANNEXURE A14 COPY OF THE BIO-DATA OF 48 TEMPORARY EMPLOYEES ISSUED FOR COMPROMISING EMPLOYEES STRIKE AS DEMANDED BY THE MEDICAL COLLEGE MANAGEMENT. THE 1ST PETITIONER HEREIN GOT POLICE PROTECTION ORDER FROM THE HON'BLE HIGH COURT IN 2013 AGAINST 7 OUT OF 48 TEMPORARY (SERIAL NO.11 TO 17) IT SHOWS THAT THESE TEMPORARY WORKERS WERE DIRECTLY EMPLOYED BY THE PETITIONER NO.1 IN 2013-2014. ANNEXURE A15 COPY OF THE BIO-DATA OF 10 TEMPORARY EMPLOYEES ISSUED FOR COMPROMISING EMPLOYEES STRIKE AS DEMANDED BY THE MEDICAL COLLEGE

MANAGEMENT.

ANNEXURE A15(A) COPY OF THE BIO-DATA OF 10 TEMPORARY EMPLOYEES ISSUED FOR COMPROMISING EMPLOYEES STRIKE AS DEMANDED BY THE MEDICAL COLLEGE MANAGEMENT ANNEXURE A15(B) COPY OF THE BIO-DATA OF 10 TEMPORARY EMPLOYEES ISSUED FOR COMPROMISING EMPLOYEES STRIKE AS DEMANDED BY THE MEDICAL COLLEGE MANAGEMENT ANNEXURE A15(C) COPY OF THE BIO-DATA OF 11 TEMPORARY EMPLOYEES ISSUED FOR COMPROMISING EMPLOYEES STRIKE AS DEMANDED BY THE MEDICAL COLLEGE MANAGEMENT ANNEXURE A16 COPY OF THE NEWS SHOWING EMPLOYEES STRIKE AT ANJARAKANDY MEDICAL COLLEGE ANNEXURE A17 COPY OF THE AGREEMENT BETWEEN AMAL AMENITIES AND ANJARAKANDY MEDICAL COLLEGE SIGNED BY SMT. BANCY ON BEHALF OF AMAL AMENITIES. ANNEXURE A18 COPY OF THE DOCUMENT PROVING OWNERSHIP OF PETITIONER NO.1 AS THE OWNER OF HOTELS AT BANGALORE & ERNAKULAM ANNEXURE A1 MEMORANDUM OF WRIT PETITION(CIVIL) FILE

//TRUE COPY//

SD/- P.S. TO JUDGE