Sunil vs State Of Kerala
2023 Latest Caselaw 13093 Ker

Citation : 2023 Latest Caselaw 13093 Ker
Judgement Date : 15 December, 2023

Kerala High Court

Sunil vs State Of Kerala on 15 December, 2023

Author: P.V.Kunhikrishnan

Bench: P.V.Kunhikrishnan

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
           THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
   FRIDAY, THE 15TH DAY OF DECEMBER 2023 / 24TH AGRAHAYANA, 1945
                     CRL.MC NO. 10237 OF 2023
  CRIME NO.492/2015 OF Poovar Police Station, Thiruvananthapuram
 AGAINST THE ORDER/JUDGMENT CC 374/2019 OF JUDICIAL MAGISTRATE OF
                  FIRST CLASS -II,NEYYATTINKARA
PETITIONER(S)/ACCUSED NO.1, 3 AND 5:

    1     SUNIL, AGED 48 YEARS
          S/O KRISHNAN NADAR, KRISHNA BHAVAN, MULLUVILA,
          THIRUPURATHOOR, THIRUPURAM VILLAGE, THIRUVANANTHAPURAM,
          PIN - 695133
    2     SHEJIN, AGED 36 YEARS
          S/O FRANCIS, SHEJIN NIVAS, PURATHUVILA, THIRUPURAM,
          THIRUVANANTHAPURAM, PIN - 695133
    3     SHERLY, AGED 40 YEARS
          W/O SUNIL, KRISHNA BHAVAN, MULLUVILA, THIRUPURATHOOR,
          THIRUPURAM VILLAGE, THIRUVANANTHAPURAM, PIN - 695133
          BY ADVS.
          S.MOHAMMED AL RAFI
          THAJUNA MARIA FRANCIS

RESPONDENT(S)/STATE AND COMPLAINANT:

    1     STATE OF KERALA
          REPRESENTED BY THE PUBLIC PROSECUTOR , HIGH COURT OF
          KERALA, ERNAKULAM, PIN - 682031
    2     AUGUSTIAN, S/O GABRIEL, PUNNANINNA PUTHEN VETTIL,
          PAZHYAKADA P.O, THIRUPURATHOOR DESOM, THIRUPURAM
          VILLAGE, THIRUVANANTHAPURAM, PIN - 695133
          BY ADVS.
          S.KRISHNA
          GOVIND R.(K/566/2013)
          SRI.HRITHWIK .C.S., PP

     THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
15.12.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 Crl.M.C.No.10237 of 2023


                                      2




                 P.V.KUNHIKRISHNAN, J.
                ------------------------------
                Crl.M.C.No.10237 of 2023
        ----------------------------------------------
       Dated this the 15th day of December, 2023


                               ORDER

This Criminal Miscellaneous Case is filed with the

following prayers:

"to quash Annexure C complaint and further proceedings in C.C. No 374/2019 on the file of Judicial First Class Magistrate Court II, Neyyattinkara in the interests of justice."

2. It is the case of the petitioners that, originally a

case was registered against the petitioners by the police

and the case was referred as per Annexure B refer report.

Thereafter a protest complaint is filed. The grievance of the

petitioners is that the protest complaint is taken on file

without looking into Annexure B refer report. Petitioners

relied on the judgment of this Court in Parameswaran

Nair v. Surendran and another [2009 (1) KHC 801].

3. Heard the learned counsel appearing for the

petitioners, the learned Public Prosecutor and the learned

counsel appearing for the 2nd respondent.

4. After hearing both sides, I think there is some

force in the argument of the petitioner. It will be better to

extract the order taking cognizance which is endorsed in

Annexure C complaint:

"23/2/19 Amendment carried out. Amended copy produced. Heard. There is no material on record to attract offences u/s. 379, 294 (b) IPC. The details of other person arrayed as 6 is also not mentioned. Hence cognizance is taken for offences u/s 143, 147, 149, 447, 427, 506(1) IPC against A1 to 5 & case is taken on file as CC 374/19 u/s 143, 147, 149, 447, 427, 506(i) IPC against A1 to 5. Issue Ss to A1 to A5. Complainant to take steps."

5. While taking cognizance, the learned Magistrate

has not considered Annexure B refer report. The relevant

portion of Parameswaran Nair's case (supra) is extracted

hereunder:

"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. "

In the light of the above decision, I think the matter is

to be reconsidered by the learned Magistrate. Therefore,

this Criminal Miscellaneous Case is allowed. The order

dated 23.02.2019 taking cognizance on Annexure C

complaint is set aside and the Judicial First Class Magistrate

Court - II, Neyyattinkara is directed to reconsider the

matter in the light of the dictum laid down by this Court in

Parameswaran Nair's case (supra).

Sd/-

                                           P.V.KUNHIKRISHNAN
DM                                               JUDGE





                  APPENDIX OF CRL.MC 10237/2023

PETITIONER ANNEXURES
ANNEXURE A            CERTIFIED COPY OF THE FIRST INFORMATION

REPORT IN CRIME NO.492/2015 OF POOVAR POLICE STATION ANNEXURE B CERTIFIED COPY OF THE REFER CHARGE IN CRIME NO.492/2015 OF POOVAR POLICE STATION ANNEXURE C CERTIFIED COPY OF THE PRIVATE COMPLAINT IN FILED BY 2ND RESPONDENT IN C.C.NO.374/2019 ALONG WITH THE ORDER DATED 23/02/2019 ISSUED BY THE JUDICIAL 1ST CLASS MAGISTRATE COURT-II, NEYYATTINKARA ANNEXURE D TRUE COPY OF THE PLAINT IN O.S. NO.384/2015 ON THE FILE OF MUNSIFF COURT, NEYYATTINKARA ANNEXURE E TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONERS IN O.S. NO.384/2015 ON THE FILE OF MUNSIFF COURT, NEYYATTINKARA

RESPONDENTS EXHIBITS : NIL //TRUE COPY// PA TO JUDGE