Raveendran Pillai vs State Of Kerala
2024 Latest Caselaw 30111 Ker

Citation : 2024 Latest Caselaw 30111 Ker
Judgement Date : 24 October, 2024

Kerala High Court

Raveendran Pillai vs State Of Kerala on 24 October, 2024

Author: P.V.Kunhikrishnan

Bench: P.V.Kunhikrishnan

CRL.MC NO. 3133 OF 2018               1



                                                     2024:KER:79307
                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                  PRESENT

             THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN

  THURSDAY, THE 24TH DAY OF OCTOBER 2024 / 2ND KARTHIKA, 1946

                          CRL.MC NO. 3133 OF 2018

      CRIME NO.1621/2011 OF Kottiyam Police Station, Kollam

          AGAINST THE ORDER/JUDGMENT DATED IN CC NO.3207 OF 2015

OF JUDICIAL MAGISTRATE OF FIRST CLASS -II, KOLLAM

PETITIONER/S:

               RAVEENDRAN PILLAI
               AGED 68 YEARS
               AGED 68 YEARS, S/O. GOPALAPILLAI, USHAYALAM,
               THAZHUTHALA CHERRY, ADICHANALLOOR VILLAGE, KOLLAM -
               691 573.


               BY ADVS.
               SRI.SHABU SREEDHARAN
               SMT.NIDHI RAVINDRAN
               SMT.RESHMA ABDUL RASHEED
               SRI.D.THILAKAN
               SRI.P.R.VIBHU
               SRI.M.YOHANNAN




RESPONDENT/S:

      1        STATE OF KERALA
               REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
               KERALA, ERNAKULAM - 682 031.

      2        GEETHA DEVI
               AGED 52 YEARS
 CRL.MC NO. 3133 OF 2018             2



                                                     2024:KER:79307
               AGED 52 YEARS, W/O. LATE KALADHARAN PILLAI,
               KOCHUVEDU, THAZHUTHALA CHERRY, ADICHANALLOOR
               VILLAGE, KOLLAM - 691 573.



OTHER PRESENT:

               SRI.RENJITH.T.R, SR.PP


       THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
24.10.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 CRL.MC NO. 3133 OF 2018                  3



                                                        2024:KER:79307

                    P.V.KUNHIKRISHNAN, J
                 --------------------------------------
                   Crl.M.C. No. 3133 of 2018
                  --------------------------------------
            Dated this the 24th day of October, 2024



                                   ORDER

This Criminal Miscellaneous case is filed to quash

Annexure-3 protest complaint, which is filed before the

Judicial First Class Magistrate Court-II, Kollam. The offences

alleged are under Secs.379 and 447 IPC. Admittedly, for the

same set of facts, the police investigated the case and filed a

refer report, as evident by Annexure-2. The grievance of the

petitioner is that the protest complaint is considered, without

considering the refer report.

2. Heard the learned counsel for the petitioner

and the learned Public Prosecutor. Even though notice is

served to the 2nd respondent through her lawyer appearing

before the trial court, there is no appearance.

2024:KER:79307

3. Admittedly, the police investigated the same

set of facts and referred the matter as evident by Annexure-2

order. There is nothing to show that the learned Magistrate

has considered Annexure-2 refer report, while taking

cognizance based on Annexure-3 protest complaint.

4. 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 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."

5. Similarly in Kader v. State of Kerala [1999

2024:KER:79307 (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 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

2024:KER:79307 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 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-2 refer report.

Therefore, this Criminal Miscellaneous case is

disposed of with the following directions :