Kerala High Court
Joy vs K.S. Hameed on 10 October, 2024
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
THURSDAY, THE 10TH DAY OF OCTOBER 2024 / 18TH ASWINA, 1946
CRL.MC NO. 4521 OF 2018
IN CC NO.20 OF 2017 OF CHIEF JUDICIAL
MAGISTRATE ,THODUPUZHA, ARISING FROM CRIME NO.488/2016 OF
THODUPUZHA POLICE STATION, IDUKKI
PETITIONERS/ACCUSED 3,4 AND 5:
1 JOY
S/O.KUNJU @ THAADI, JOY, AGED 48
YEARS,VELAMPLAYKAL HOUSE, IDAVETTIKARA,IDAVETTI
P.O., KARIKKODE.
2 BABU
S/O.JOHN, AGED 50,VETTIKATTIL HOUSE, MADAKKATHANAM
KARA,IDAYKATTU KAYATTAM BHAGAM,MADAKKATHANAM P.O.
3 ANILKUMAR.T.V.
S/O.VASUDEVAN, AGED 45,THAKARAPPALLIL HOUSE,
ARIKKUZHA P.O.,ARIKKUZHA, MANAKKADU VILLAGE.
BY ADV SRI.K.R.SUNIL
RESPONDENTS/DEFACTO COMPLAINANT:
1 K.S. HAMEED
S/O.SAIDU MUHAMMAD, AGED 68,MANGATT HOUSE,
KARIKKODE KARA, THODUPUZHA EAST P.O.,KARIKKODE
VILLAGE, THODUPUZHA, PIN-685 585.
2 THE SUB INSPECTOR OF POLICE
THODUPUZHA POLICE STATION,THODUPUZHA REPRESENTED
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2
OTHER PRESENT:
SRI.RENJITH.T.R, SR.PP
SRI.LATHEESH SEBASTIAN
SRI.K.S.HAMEED (R1)
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 10.10.2024, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
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3
P.V. KUNHIKRISHNAN, J.
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Crl.M.C.No.4521 of 2018
-----------------------------------
Dated this the 10th day of October, 2024
ORDER
This Crl.M.c is filed to quash the
proceedings in CC No.20/2017 on the files of the
Chief Judicial Magistrate Court, Thodupuzha, arising
from Crime no.488/2016 of Thodupuzha Police Station.
It is a protest complaint filed by the 1st
respondent. Annexure A3 is the complaint.
Admittedly, based on the same set of facts, Police
registered a case and Police referred the case as
evident by Annexure A2. There is nothing to show
that the learned Magistrate while taking cognizance
based on Annexure A3, the refer report is
considered.
2. This Court in Parameshwaran Nair v.
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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 not lawful 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."
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3. 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 the
matter and the matter is decided
without notice to him. It is,
therefore, open to the Magistrate to
scrutinize carefully the allegations
made in the complaint with a view to
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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.
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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
am of the considered opinion that the order taking
cognizance is to be set aside and the learned
Magistrate can be directed to reconsider the matter
in the light of Annexure A2 refer report and also in
the light of the principle laid down in
Parameshwaran Nair v. Surendran [2009 (1) KLT 794]
and Kader v. State of Kerala [1999 (3) KLT 55].
Therefore, this Crl.M.C is allowed in the
following manner:
1. The order taking cognizance based on
Annexure A3 is quashed.
2. The learned Magistrate is directed to
reconsider the matter in the light of Annexure A2
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refer report and also in the light of the principle
laid down in Parameshwaran Nair v. Surendran [2009
(1) KLT 794] and Kader v. State of Kerala [1999 (3)
KLT 55].
Sd/-
P.V. KUNHIKRISHNAN
JUDGE
SSG
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PETITIONER'S ANNEXURES
ANNEXURE A1: CERTIFIED COPY OF THE PRIVATE COMPLAINT
NUMBERED AS CMP NO.1644 OF 2016.
ANNEXURE A2: TRUE COPY OF THE REFER REPORT DATED
24.03.2017 SUBMITTED BY THE 2ND
RESPONDENT BEFORE THE CHIEF JUDICIAL
MAGISTRATE COURT, THODUPUZHA.
ANNEXURE A3: CERTIFIED COPY OF THE PROTEST COMPLAINT
NUMBERED AS CRL.M.P.3403 OF 2016
