Kerala High Court
Jacob vs State Of Kerala on 3 October, 2024
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
CRL.MC NO. 1966 OF 2018 1
2024:KER:73468
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
THURSDAY, THE 3RD DAY OF OCTOBER 2024 / 11TH ASWINA, 1946
CRL.MC NO. 1966 OF 2018
CRIME NO.36/2016 OF Puthencruz Police Station, Ernakulam
AGAINST THE ORDER/JUDGMENT DATED IN ST NO.18 OF 2018 OF
GRAMA NYAYALAYA, VADAVUCODE AT KOLENCHERY
PETITIONER/S:
1 JACOB
AGED 84 YEARS, S/O.VARKEY, NECHUPADAM HOUSE,
KADAYIRUPPU, AYKARANADU, ERNAKULAM.
2 JIMMY JOSE
AGED 43 YEARS, S/O.JOSE PETER, SYNTHITE QUARTERS
NO.5,PANKODE KARA, AYKARANADU, ERNAKULAM.
BY ADVS.
SRI.S.RAJEEV
SRI.K.K.DHEERENDRAKRISHNAN
SRI.D.FEROZE
SRI.V.VINAY
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM-682031,(CRIME NO.36/2016 OF
PUTHENCRUZ POLICE STATION, ERNAKULAM DISTRICT).
2 KOCHUMATHEW
AGED 62 YEARS
AGED 62 YEARS, S/O.MATHEW, VADASSERY VEEDU, MELOOR
DESOM, MELOOR VILLAGE, CHALAKUDY TALUK, THRISSUR
DISTRICT-680001.
BY ADV SRI.ABDUL RAOOF PALLIPATH
OTHER PRESENT:
SRI.SANGEETHARAJ.N.R, PP
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
03.10.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
CRL.MC NO. 1966 OF 2018 2
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P.V.KUNHIKRISHNAN, J
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Crl.M.C. No. 1966 of 2018
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Dated this the 3rd day of October, 2024
ORDER
This Criminal Miscellaneous case is filed to quash the
proceedings in ST No. 18/2018 on the file of the Grama
Nyayalaya, Vadavukode, Kolenchery. It is a private complaint.
The offences alleged are under Secs. 323 & 506 (i) r/w 34 IPC.
2. The short point raised by the petitioners is that
based on the same set of facts, the Police registered a case and
the Police referred the matter as evident by Annexure-II.
Without adverting the same, the learned Magistrate taken
cognizance based on Annexure-II. I think there is some force in
the above argument.
3. This Court in Parameswaran Nair v.
Surendran [2009 (1) KLT 794] considered this point in detail.
The relevant portion of the above judgment is extracted
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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:
"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
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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 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."
4. In the light of the above principle, I think the the
order taking cognizance can be set aside and the learned
Magistrate can be directed to reconsider the matter, in the light
of Annexure-II refer report.
Therefore, this Criminal Miscellaneous case is disposed
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of with the following directions.
1) The order taking cognizance in ST No. 18/2018 on
the file of the Grama Nyayalaya, Vadavukode is set
aside.
2) The trial court is directed to reconsider Annexure-
III complaint, in the light of Annexure-II refer
report and also in the light of the dictum laid down
in Parameswaran Nair's case (supra) and Kader's
case (supra).
Sd/-
P.V.KUNHIKRISHNAN
JUDGE
SKS
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PETITIONER ANNEXURES
ANNEXURE I TRUE COPY OF THE FIRST INFORMATION
STATEMENT ALONG WITH FIRST INFORMATION
REPORT IN CRIME NO.36/2016 OF PUTHENCRUZ
POLICE STATION.
ANNEXURE II TRUE COPY OF THE FINAL REPORT IN CRIME
NO.36/2016 OF PUTHENCRUZ POLICE STATION.
ANNEXURE III CERTIFIED COPY OF THE COMPLAINT SUBMITTED
BY THE 2ND RESPONDENT.
