Kerala High Court
Ajas Salim vs State Of Kerala on 17 October, 2024
Author: P. V. Kunhikrishnan
Bench: P.V.Kunhikrishnan
Crl.M.C.7001/2018
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
THURSDAY, THE 17TH DAY OF OCTOBER 2024 / 25TH ASWINA, 1946
CRL.MC NO. 7001 OF 2018
CRIME NO.11343/2013 OF EDAPPALLY CITY TRAFFIC POLICE
STATION, Ernakulam
AGAINST THE ORDER IN CC NO.123 OF 2016 OF JUDICIAL
FIRST CLASS MAGISTRATE COURT, KAKKANAD
PETITIONER/ACCUSED:
AJAS SALIM, AGED 27 YEARS, S/O.SALIK K.T, KEEPPETH
CHOORAKODE, PATTIMATTOM.P.O., ERNAKULAM DISTRICT.
BY ADVS.
PAUL K.VARGHESE
SMT.A.A.GEETHA
RESPONDENTS/DEFACTO COMPLAINANT:
1 STATE OF KERALA, REPRESENTED PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM-682 031.
2 TENSON.M.A., S/O.M.K.ANTONY, AGED ABOUT 49 YEARS,
MUTTURUTHIL HOUSE, AZAD ROAD, KALOOR,
ERNAKULAM DISTRICT - 682 017.
BY ADVS.
AJWIN P LALSON
V.K.KISHOR(K/1058/1992)
DEVI P. PRATHAPAN(K/165/2013)
ASHNA ALOYSIUS P.(K/100/2015)
ANOOJ K SUDHARMAN(K/449/2020)
AMRUTHA P.M.(K/001322/2021)
MANJU LUCKOSE(K/1069/2022)
SRI.RENJITH.T.R, SR.PP
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
17.10.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.M.C.7001/2018
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2024:KER:77507
P. V. KUNHIKRISHNAN, J.
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Crl.M.C.No.7001 of 2018
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Dated this the 17th day of October, 2024
ORDER
This Criminal Miscellaneous Case is filed to quash
the proceedings against the petitioner in C.C.No.123/2016 on
the file of the Judicial First Class Magistrate Court,
Kakkanand.
2. According to the petitioner, on 10.6.2013 at
about 7.15 p.m., while the petitioner was travelling in his
motor cycle bearing registration No. KL-7B- 2574 through
Kakkanad-Kizhakkambalam road from west to east and when
the vehicle reached near Thengod, an offending vehicle driven
by one Shiju, S/o. Joseph came in a rash and negligent
manner and hit against the petitioner's vehicle and the
petitioner fell down in the road resulting very serious injuries
in his head and fracture in the bone. It is submitted that the
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petitioner was taken to Sunrise Hospital and he had
undergone various major operations. According to the
petitioner, he was in the Intensive Care Unit for more than 3
months. Annexure I is the copy of the scan report of the
petitioner. Annexure II is the discharge summary issued by
the Sunrise Hospital, Kakkanad. According to the petitioner,
the accident occurred due to the rash and negligent driving of
Shiju and hence the police registered a crime against Shiju.
After the investigation, the police filed a final report against
Shiju as evident by Annexure III under Sections 279 and 338
IPC. Subsequently, Shiju died and consequently Annexure III
criminal case was closed.
3. But later on, after a lapse of more than one
year, the brother-in-law of Shiju, who is the 2 nd respondent
herein, filed a criminal complaint before the Magistrate
Court, Aluva against the petitioner herein alleging that the
accident occurred due to the mistake of the petitioner. The
said complaint was forwarded to Aluva Police Station under
Section 156(3) Cr.P.C. The police conducted investigation
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after registering the crime and a final report was submitted
stating that it is a false case filed for the purpose of getting
insurance claim. Annexure-IV is the final report. Thereafter
the above said defacto complaint filed protest complaint
before the Judicial First Class Magistrate Court, Aluva against
the petitioner. The case was subsequently transferred to the
Judicial First Class Magistrate Court, Kakkanad. After taking
the statement of the defacto complainant and two persons,
the court below took cognizance of the case against the
petitioner and numbered the case as C.C.No.123 of 2016.
Annexure-V is the private complaint filed by the 2nd
respondent. However, during the course of the case, the above
Shiju died and the offence under Section 304A IPC was also
added as evident by Annexure-VI order by the learned
Magistrate. According to the petitioner, the continuation of
Annexure-V protest complaint is an abuse of process of court.
Hence, this Criminal Miscellaneous Case.
4. Heard learned counsel for the petitioner
and the counsel appearing for the 2nd respondent. I also
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heard the Public Prosecutor.
5. Admittedly, the police charge sheeted a
case against Shiju as evident by Annexure-III and that case
was closed because Shiju died. Thereafter, the 2 nd respondent
filed a complaint which was forwarded to the police and the
police referred the case as false as evident by Annexure-IV.
Consequently, protest complaint is filed as evident by
Annexure-V. There is nothing to show that the learned
Magistrate has considered Annexures-III and IV while taking
cognizance of Annexure-V.
6. 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
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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."
7. 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 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
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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."
8. In the light of the above principle, I am of
the considered opinion that the order taking cognizance based
on Annexure-V is to be set aside, including Annexure-VI
order and the trial court has to reconsider the matter in the
light of Annexures-III and IV and also in the light of the
dictum laid down in Parameshwaran's case (supra) and
Kader's case (supra). It is submitted that a claim petition is
filed by the legal heirs of deceased Shiju before the Tribunal. I
make it clear that the Tribunal concerned will proceed in
accordance with law untrammeled by any observation in this
order.
Therefore, this Criminal Miscellaneous Case is
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allowed in the following manner:
a) The order taking cognizance
based on Annexure-V protest complaint,
including Annexure-VI order are set aside.
b) The jurisdictional court is
directed to reconsider the matter in the light of
Annexures-III and IV 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
JUDGE
DM/Sbna/17.10.2024
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PETITIONER ANNEXURES
ANNEXURE I A TRUE COPY OF THE SCAN REPORT OF THE
PETITIONER DATED 22/5/2017.
ANNEXURE II A TRUE COPY OF THE DISCHARGE SUMMERY
ISSUED BY SUNRISE HOSPIAL, KAKKANAD TO
THE PETITIONER DATED 8/7/2013.
ANNEXURE III A TRUE COPY OF THE FINAL REPORT IN ST
NO.4618/2013 ON THE FILE OF JUDICIAL
FIRST CLASS MAGISTRATE COURT, ALUVA
DATED 16/3/2013.
ANNEXURE IV A TRUE COPY OF THE FINAL REPORT IN
CRIME NO.11343/2013 ON THE FILE OF
JUDICIAL FIRST CLASS MAGISTRATE COURT-
I, ALUVA DATED 11/11/2013.
ANNEXURE V A TRUE COPY OF THE PRIVATE COMPLAINT
FILED BY THE DEFACTO COMPLAINANT
AGAINST THE PETITIONER BEFORE THE
JUDICIAL FIRST CLASS MAGISTRATE COURT,
ALUVA WHICH IS NOW NUMBERED AS
C.C.NO.123/2016 ON THE FILE OF JUDICIAL
FIRST CLASS MAGISTRATE COURT, KAKKANAD
DATED 25/11/2014.
ANNEXURE VI A TRUE COPY OF THE ORDER IN CMP
NO.6726/2017 IN C.C.NO.123/2016 ON THE
FILE OF JUDICIAL FIRST CLASS MAGISTRATE
COURT, KAKKANAD DATED 8/2/2018.
