Kerala High Court
Seema Saji vs State Of Kerala on 20 January, 2025
Crl.R.P.No.660 of 2023
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
MONDAY, THE 20TH DAY OF JANUARY 2025/30TH POUSHA, 1946
CRL.REV.PET NO.660 OF 2023
AGAINST THE ORDER DATED 18.03.2022 IN CRL.M.P.454/2022 IN C.C
NO.432 OF 2020 OF JUDICIAL MAGISTRATE OF FIRST CLASS,
THIRUVALLA
REVISION PETITIONER/COMPLAINANT:
SEEMA SAJI, AGED 39 YEARS, W/O.SAJI AUGUSTINE,
'CHARIVUPURAYIDATHIL', VALLAMALA MURI,
KUNNAMTHANAM VILLAGE, MALLAPPALLY TALUK,
KUNNAMTHANAM P.O.,
PATHANAMTHITTA DISTRICT, PIN - 689581.
BY ADVS.
MOHAMMED SIYAD M.F.
SUNANDA SUKUMARAN
C.B.SUMA DEVI
RESPONDENTS/STATE AND ACCUSED NOS.1 TO 3:
1 STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031.
2 SHAJAN SKARIAH, AGED ABOUT 56 YEARS,
S/O.K.T. SKARIA, CHAIRMAM, 'MARUNADAN MALAYALEE',
TC 17/3164 (II), PANACHAMOODU LANE,
PATTOM PALACE P.O.,
THIRUVANANTHAPURAM, PIN - 695004.
3 M. RAJU, AGED ABOUT 48 YEARS,
FATHER'S NAME NOT KNOWN TO THE PETITIONER,
CHIEF EDITOR,'MARUNADAN MALAYALEE',
TC 17/3164 (II), PANACHAMOODU LANE,
PATTOM PALACE P.O.,
THIRUVANANTHAPURAM,, PIN - 695004.
Crl.R.P.No.660 of 2023
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4 ANN MARY GEORGE, AGED ABOUT 40 YEARS,
FATHER'S NAME NOT KNOWN TO THE PETITIONER,
MANAGING DIRECTOR, 'MARUNADAN MALAYALEE',
TC 17/3164 (II), PANACHAMOODU LANE,
PATTOM PALACE P.O.,
THIRUVANANTHAPURAM,, PIN - 695004.
BY ADVS.C.G.PREETHA
E.C.BINEESH, PUBLIC PROSECUTOR
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
ADMISSION ON 20.01.2025, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
Crl.R.P.No.660 of 2023
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O R D E R
Dated, this the 20th day of January, 2025
The petitioner - the defacto complainant in C.C.No.432/2020
pending before the Judicial First Class Magistrate Court,
Thiruvalla - is aggrieved by the Order dated 18.03.2022 in
Crl.M.P.No.454/2022, which discharged the accused person in
respect of offences under Section 500, read with Section 34
of the Penal Code.
2. The reason stated for discharge is that the predecessor
Magistrate had forwarded the complaint under Section 190,
read with 200 of Cr.P.C for investigation under Section
156(3), based upon which, a Final Report has been filed. The
learned Magistrate, in the impugned Order, found that the
course adopted by the predecessor is bad in law, in view of
the bar under Section 199 Cr.P.C. The learned Magistrate
found that on account of the above mistake, it resulted in
such a situation that neither the complaint can be proceeded
with, nor the Final Report be acted upon. On such premise,
the accused was discharged under Section 258 Cr.P.C.
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3. Heard the learned counsel for the petitioner; learned
counsel for respondents 2 to 4 and the learned Public
Prosecutor.
4. Learned counsel for the petitioner submits that the
course adopted in the impugned Order by the learned
Magistrate is squarely against the dictum laid down by a
learned Single Judge in Sherin and Others v. State of Kerala
[2014 (1) KHC 700]. In that case, it was held by this Court
that even if a complaint is mistakenly sent for investigation
under Section 156(3) Cr.P.C, when the offences involved are
under Chapter 20 or 21 of the Penal Code, the Magistrate can
ignore the Final Report and proceed on the original
complaint, after issuing notice to the complainant as
required under Section 200 Cr.P.C. It was also held that
ignoring the police report, if the Magistrate proceeds on the
original complaint and is satisfied with the evidence
adduced, that there exists sufficient ground for proceeding,
the Magistrate may issue process to the accused under Section
204 of Cr.P.C. According to the learned counsel, this course
should have been followed in the instant case. At any rate,
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discharging the accused under Section 258 Cr.P.C cannot be
countenanced in law, is the argument advanced.
5. Per contra, learned counsel for the respondents 2 to 4
would submit that there is no bar in proceeding against the
accused person going by Section 305 Cr.P.C, but with the
consent of the court, which discharged the
accused/respondent. When such a course is open, the impugned
Order need not be set aside, is the submission made by the
learned counsel.
6. Having heard the learned counsel appearing for the
respective parties, this Court can only endorse the
submission made by the learned counsel for the petitioner. As
canvassed, the impugned Order is squarely in the teeth of the
judgment in Sherin (supra). The course adopted in paragraph
no.12 of the said judgment ought to have been followed by the
learned Magistrate, even after finding that, the complaint
forwarded under Section 156(3) and the Final Report filed
pursuant thereto, are bad in law. This Court is of the
opinion that the provision under Section 305 is not an answer
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to the illegality and infirmity attached to the impugned
Order. Section 305 is only an enabling provision, where there
arises a necessity to try a person, who has already been
discharged, probably on the strength of new evidence or
materials. The same can be done, but with the consent of the
court, which discharged the accused. The present fact
situation is not the one envisaged under Section 305.
7. In the result, this Court sets aside the impugned Order
dated 18.03.2022 in Crl.M.P.No.454/2022 in C.C.No.432/2020
and direct the learned Magistrate to proceed with the matter
in accordance with law, in view of the dictum laid down in
Sherin (supra), especially at paragraph no.12 thereof.
This Criminal Revision Petition is disposed of, as
above.
Sd/-
C.JAYACHANDRAN, JUDGE
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