Kerala High Court
Salam vs Chandrika on 21 November, 2024
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
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CRL.MC NO. 2601 OF 2019
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
THURSDAY, THE 21ST DAY OF NOVEMBER 2024 / 30TH KARTHIKA,
1946
CRL.MC NO. 2601 OF 2019
CRIME NO.119/2017 OF Meppayur Police Station, Kozhikode
SC NO.173 OF 2018 OF SPECIAL COURT UNDER POCSO ACT,
KOZHIKODE
PETITIONERS/ACCUSED:
1 SALAM
AGED 37 YEARS
S/O.MOIDEEN, NADAKKAL HOUSE, MEPPAYUR.P.O.,
KOYILANDY TALUK, KOZHIKODE DISTRICT.
2 MOOSA
AGED 60 YEARS
S/O.MOIDEEN, NADAKKAL HOUSE, MEPPAYUR.P.O.,
KOYILANDY TALUK, KOZHIKODE DISTRICT.
3 SOOPPY
AGED 60 YEARS
S/O.MOIDEEN, NADAKKAL HOUSE, MEPPAYUR.P.O.,
KOYILANDY TALUK, KOZHIKODE DISTRICT.
4 RASHEED
AGED 32 YEARS
S/O.MOOSA, NADAKKAL HOUSE, MEPPAYUR.P.O.,
KOYILANDY TALUK, KOZHIKODE DISTRICT.
BY ADV SUNNY MATHEW
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CRL.MC NO. 2601 OF 2019
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COMPLAINANT/RESPONDENTS & STATE:
1 CHANDRIKA,
D/O.ARIYAN, AGED 47 YEARS,
KANOTH MEETHAL HOUSE, KOOTHALI POST,
PERAMBRA, KOYILANDY, KOZHIKODE DISTRICT.
2 STATE OF KERALA,
(REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM)
SRI.RENJITH T.R, SR.PP
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
21.11.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
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P.V.KUNHIKRISHNAN, J.
--------------------------------
Crl.M.C. No.2601 of 2019
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Dated this the 21st day of November, 2024
ORDER
This criminal miscellaneous case is filed to quash the
proceedings in S.C.No.173/2018 on the file of the Sessions Court
(Special Court for Trial of Offences Against Women and
Children), Kozhikode.. It is a private complaint filed by the 1 st
respondent. Admittedly, for the same set of facts, the Police
investigated the case and the filed a refer report, as evident by
Annexure-A3. This Court directed the Registry to get a copy of
the order taking cognizance based on which the case is
registered. The order taking cognizance dated 23.02.2018 in
CMP No.249/2018 of the Sessions Court, Kozhikode is extracted
hereunder:
"On perusing the records, documents and
statements of the witnesses, I am satisfied that
there is prima facie materials to attract the
offences u/s 3(1)(x) of SC/ST PO Act and Sec. 323,
354 IPC. Hence register as Sessions Case 173/18.
Issue summons to accused. Return of summons
22.03.2018."
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2. A perusal of the same would not show that the
learned Sessions Judge considered the refer report while taking
cognizance.
3. This Court in Parameshwaran Nair v. Surendran
[2009 (1) KLT 794] considered this point in detail. The relevant
portion of the above judgment 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
notlawful to the Magistrate to ignore the final report
submitted by the police under Section 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."
4. Similarly in Kader v. State of Kerala [1999 (3) KLT
55], this Court considered the same point which is extracted
hereunder:
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"7. The Court noted that the scope of enquiry
under S.202 is the ascertainment of the truth or
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
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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."
5. In the light of the above judgments, I am of the
considered opinion that the order taking cognizance is to be set
aside and the matter is to be reconsidered by the Jurisdictional
Court in the light of Annexure-A3 refer report and also in the
light of the principles laid down by this Court in
Parameshwaran Nair's case (supra) and Kader's case
(supra).
Therefore, this Criminal Miscellaneous case is disposed of
in the following manner:
1. The order dated dated 23.02.2018 in CMP
No.249/2018 of the Sessions Court, Kozhikode is
set aside.
2. The Jurisdictional Court is directed to reconsider
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Annexure-A1 complaint in the light of Annexure-A3
refer report and also in the light of the principles
laid down by this Court in Parameshwaran Nair v.
Surendran [2009 (1) KLT 794] and Kader v. State
of Kerala [1999 (3) KLT 55].
sd/-
P.V.KUNHIKRISHNAN
JV JUDGE
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PETITIONER ANNEXURES
ANNEXURE A1 A TRUE COPY OF COMPLAINT IN
C.M.P.NO.249/2018.
ANNEXURE A2 TRUE COPY OF THE SUMMONS IN
S.C.173/2018.
ANNEXURE A3 TRUE COPY OF THE FINAL REPORT
NO.206/2017 IN CRIME NO.119/2017.
ANNEXURE A4 TRUE COPY OF THE JUDGMENT IN
O.S.43/1998.
ANNEXURE A5 TRUE COPY OF THE DECREE IN O.S.43/1998.
ANNEXURE A6 TRUE COPY OF THE ORDER DATED 9.4.2013
PASSED BY THE MUNSIFF COURT, PERAMBRA IN
E.A.89/2011 IN E.P.97/2007.
ANNEXURE A7 TRUE COPY OF THE ORDER DATED 11.2.2015
PASSED BY THIS HON'BLE COURT IN
C.R.P.NO.374/2013.
ANNEXURE A8 TRUE COPY OF THE SKETCH AND REPORT OF
THE ADVOCATE COMMISSIONER DATED
28.3.2016.
ANNEXURE A9 TRUE COPY OF THE ATTENDANCE REGISTER
PERTAINING TO THE 1ST PETITIONER'S DUTY
ON 2.4.2017.
