Kerala High Court
Renie Fernandez vs State Of Kerala on 5 September, 2024
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
Crl.M.C. No.6639 of 2018
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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. 6639 OF 2018
CRIME NO.1280/2014 OF KOLLAM WEST POLICE STATION, KOLLAM
AGAINST THE ORDER/JUDGMENT DATED IN CMP
NO.5912 OF 2014 OF CHIEF JUDICIAL MAGISTRATE ,KOLLAM
ARISING OUT OF THE ORDER/JUDGMENT DATED IN CC NO.328
OF 2018 OF JUDICIAL FIRST CLASS MAGISTRATE COURT -
III, KOLLAM
PETITIONERS/ACCUSED 1-4 AND 6:
1 RENIE FERNANDEZ
AGED 68 YEARS
W/O. CANDID FERNANDEZ, A1, NEW NO-24, 3RD
'D' CROSS, DZIRE, KACHARAKARAHALLI HRBR,
LAYOUT, BANGALORE- 43
2 CANDID FERNANDEZ
A1, NEW NO.24, 3RD 'D' CROSS, DZIRE,
KACHARAKARAHALLI HRBR, LAYOUT, BANGALORE-43
3 MARIE D' SOUZA,
NEVIL DALE FEOPLES NAGAR-2, NEAR FIRE
STATION, KADAPPAKKADA, KOLLAM.
4 OSCAR D' SOUZA
NEVIL DALE FEOPLES NAGAR-2, NEAR FIRE
STATION, KADAPPAKKADA, KOLLAM.
5 MAXIMUS FERNANDEZ ALIAS MAXWELL FERNANDEZ
AGED 68 YEARS, S/O. LATE DUNCAN FERNANDEZ,
SHILPA, (VRA 142) VADAKKUMBHAGAM CHERRY,
Crl.M.C. No.6639 of 2018
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KOLLAM EAST VILLAGE, KOLLAM DISTRICT.
BY ADVS.
R.MOHANA BABU
N.P.PRADEEP
RESPONDENTS/COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH
COURT OF KERALA, ERNAKULAM - 682 031.
2 SHIRLEY D SOUZA
AGED 67 YEARS
W/O. DENZIL D SOUZA, MILLIE LODGE, BISHOP
PALACE NAGAR-64, THANGASSERY,
KOLLAM WEST - 691 007.
BY ADV.
SRI.SAJU J PANICKER
SRI.RENJITH.T.R, SENIOR 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.6639 of 2018
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P.V.KUNHIKRISHNAN, J.
--------------------------------
Crl.M.C. No.6639 of 2018
----------------------------------------------
Dated this the 05th day of September, 2024
ORDER
This Crl.M.C is filed to quash the proceedings in
C.C.No.328/2018 on the file of the Temporary
Judicial First Class Magistrate Court - III, Kollam
arising from Crime No. 1280/2014 of Kollam West
Police Station.
2. It is a protest complaint filed by the 2 nd
respondent aggrieved by the investigation conducted
by the police. Admittedly, the police registered a
case and after the investigation, the police referred
the matter as evident by Annexure C. Aggrieved by
the same, Annexure D protest complaint is filed.
Annexure E is the extract of proceedings in CMP
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No.4828/2017 in which the order taking cognizance
was mentioned. The order taking cognizance dated
14.05.2018 mentioned in Annexure E is extracted
hereunder:
"Perused case records and the sworn
statement of complaint other witnesses. I am
satisfied that there are sufficient grounds for
proceeding against the accused persons. Hence
complaint is taken on file as CC 328/2018 U/s.447,
427, 379, 506(i) R/w. Section 34 IPC. Issue
summons to A1 to A6. Return of summons to
10/11/2018."
3. A perusal of the above order would not
show that learned Magistrate 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
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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
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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 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
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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 look into the refer report also while taking
cognizance in a protest complaint. Hence the order
taking cognizance can be set aside.
Therefore, this Criminal Miscellaneous case is
allowed in the following manner:
1. The order taking cognizance dated
14.05.2018 in C.C. No.328/2018 on the file
of the Temporary Judicial First Class
Magistrate Court - III, Kollam is quashed.
2. The learned Magistrate is directed to
reconsider the matter in the light of the refer
report and also in the light of the principles
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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
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PETITIONER ANNEXURES
ANNEXURE A CERTIFIED COPY OF THE FIR IN CRIME
NO.1280/2014 OF KOLLAM WEST POLICE
STATION.
ANNEXURE B TRUE COPY OF THE CMP. 5912/2014
BEFORE THE HON'BLE CHIEF JUDICIAL
MAGISTRATE COURT, KOLLAM.
ANNEXURE C TRUE COPY OF THE REFER CHARGE SHEET
RC.80/16 IN CRIME NO.1280/2014 OF
KOLLAM WEST POLICE STATION
SUBMITTED BEFORE THE TEMPORARY
JFCM-III, KOLLAM.
ANNEXURE D CERTIFIED COPY OF THE PROTEST
COMPLAINT CMP 4828/2017.
ANNEXURE E CERTIFIED COPY OF THE PROCEEDINGS
OF TEMPORARY JFMC-III, KOLLAM IN
CC.328/2018.
ANNEXURE F TRUE COPY OF THE DECREE PASSED IN
O.S.160/1998 OF ADDITIONAL SUB
COURT, KOLLAM.
RESPONDENTS EXHIBITS: NIL
//TRUE COPY//
PA TO JUDGE
