Kerala High Court
Shajik vs Ammini on 5 September, 2024
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
Crl.M.C. No.790 of 2018
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2024:KER:67488
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
THURSDAY, THE 5TH DAY OF SEPTEMBER 2024 / 14TH BHADRA, 1946
CRL.MC NO. 790 OF 2018
AGAINST THE ORDER/JUDGMENT DATED 22.07.2017 IN
CRMP NO.12793 OF 2012 OF JUDICIAL MAGISTRATE OF
FIRST CLASS,IRINJALAKUDA
PETITIONER/1ST ACCUSED:
SHAJIK
S/O.HASSANAR, AGED 41, MANAKULANGARA
PARAMBIL HOUSE, VELLANGALLORE, MUKUNDAPURAM
TALUK, PRESENTLY WORKING AS THE SECRETARY
TO KATTOR GRAMA PANCHAYAT.
BY ADV. SRI.T.N.MANOJ
RESPONDENT/COMPLAINANT:
1 AMMINI
W/O.AYYAPPAN, KALATH HOUSE, VALLAMKUNNU
DESOM, KALLETTUMKARA VILLAGE, MUKUNDAPURAM
TALUK.
2 STATE OF KERALA
THROUGH THE PUBLIC PROSECUTOR, HIGH COURT
OF KERALA.
BY ADVS.
SRI.BINISH MATHEW
SRI.T.SHIHABUDHEEN - R1
SRI.SANAL P. RAJ, PP
THIS CRIMINAL MISC. CASE HAVING COME UP FOR
ADMISSION ON 05.09.2024, THE COURT ON THE SAME DAY
PASSED THE FOLLOWING:
Crl.M.C. No.790 of 2018
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P.V.KUNHIKRISHNAN, J.
--------------------------------
Crl.M.C. No.790 of 2018
----------------------------------------------
Dated this the 05th day of September, 2024
ORDER
This Criminal Miscellaneous Case is filed seeking
the following reliefs:
"1. This honorable Court may be pleased to
call for the records relating to Annexure (f) and to
quash the same.
2. Such other orders that this honorable
court deem fit to grant in the course of the
proceedings."[SIC]
2. The petitioner is aggrieved by Annexure (e)
protest complaint and also Annexure (f) order taking
cognizance based on Annexure (e) complaint.
Admittedly, it is clear from paragraph No.7 of
Annexure (e) protest complaint itself that the police
investigated the case based on the same set of facts
mentioned in Annexure (e) protest complaint and
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referred the matter.
3. This Court perused the order taking
cognizance as evident by Annexure (f). There is
nothing in Annexure (f) to show that the learned
Magistrate has considered the refer report while
taking cognizance. 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
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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 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
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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."
5. In the light of the above principles, I am of
the considered opinion that the learned Magistrate
has to consider the refer report also while taking
cognizance. Therefore, the order taking cognizance
can be set aside and there can be a direction to the
learned Magistrate to reconsider the matter in the
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light of the 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. Annexure (f) order dated 22.07.2017 in
Crl.M.P. No.12793/12 of the Judicial First
Class Magistrate Court - Irinjalakuda is set
aside.
2. The learned Magistrate is directed to
reconsider Annexure (e) protest complaint in
the light of the 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]. The learned
Magistrate will pass appropriate orders, as
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directed above, as expeditiously as possible.
3. The Registry will forward a copy of this order
to the learned Magistrate forthwith.
Sd/-
P.V.KUNHIKRISHNAN
JUDGE
DM
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PETITIONER ANNEXURES
ANNEXURE (A) TRUE COPY OF THE ROUGH SKETCH OF
THE LIE OF THE PROPERTY.
ANNEXURE (B) TRUE COPY OF THE MASS PETITION
FILED BY THE RESIDENTS BEFORE THE
PANCHAYAT.
ANNEXURE (C) TRUE COPY OF THE DECISION OF THE
PANCHAYAT MEETING HELD ON
28.1.2012.
ANNEXURE (D) TRUE COPY OF THE NOTICE OF SHOW
CAUSE OF THE PANCHAYAT.
ANNEXURE (E) TRUE COPY OF CRL.M.P.12793/12 FILED
BEFORE THE MAGISTRATE COURT AT
IRINJALAKUDA.
ANNEXURE (F) ORDER DT. 22.7.17 IN
CRL.M.P.12793/12 OF THE JUDICIAL
MAGISTRATE COURT AT IRINJALAKUDA.
RESPONDENTS EXHIBITS: NIL
//TRUE COPY//
PA TO JUDGE
