BY AD vs SRI.S.RAJEEV

BY ADVS. SRI.S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN SRI.D.FEROZE SRI.V.VINAY RESPONDENT/S: 1 THE STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031.(CRIME NO. 175/2014 OF PANDIKKAD POLICE STATION, MALAPPURAM DISTRICT) CRL.MC NO. 1802 OF 2018 2 2 RAGHUNATH AGED 33 YEARS AGED 33 YEARS, S/O. VELAYUDHAN, PONNAKUZHY HOUSE, EDAYOOR P.O, VELANCHERI, MALAPPURAM DISTRICT - 676 505. BY ADVS. SRI.U.K.DEVIDAS, SRI.SANGEETHA RAJ NR, PP , THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON

31.07.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.MC NO. 1802 OF 2018 3 P.V.KUNHIKRISHNAN, J –------------------------------------- Crl.M.C. No. 1802 of 2018 -------------------------------------- Dated this the 31st day of July, 2024 O R D E R This Criminal Miscellaneous case is filed to quash the proceedings in CC No. 41/2017 on the file of the Judicial First Class Magistrate Court-II, Perinthalmanna. It is a protest complaint filed by the 2nd respondent against the petitioners. Admittedly, the police registered a case based on the same set of facts and the case is referred as evident by Annexure-III. Thereafter, the protest complaint is filed and the learned Magistrate taken cognizance based on the protest complaint, as evident by Annexure-R2(a). Annexure-I is the protest complaint. According to the petitioners, without considering the refer CRL.MC NO. 1802 OF 2018 4 report, the learned Magistrate took cognizance, based on the protest complaint.

2. Heard the learned counsel for the petitioner, the learned counsel appearing for the 2nd respondent and the Public Prosecutor.

3. After hearing both sides, I am of the considered opinion that when the learned Magistrate taking cognizance based on a protest complaint, the contents of the refer report also has to be looked into. This point is considered by this Court in Parameshwaran Nair v. Surendran [2009 (1) KLT 794] 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, CRL.MC NO. 1802 OF 2018 5 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 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 CRL.MC NO. 1802 OF 2018 6 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 dictum, I am of the considered opinion that the order taking cognizance as evident by Annexure-R2(a) is to be set aside. Therefore, this Criminal Miscellaneous case is disposed of with the following directions : 1) Annexure-R2(a) order date 24.01.2017 in CMP No. 967/2015 of Judicial First Class Magistrate Court-II, Perinthalmanna is quashed. CRL.MC NO. 1802 OF 2018 7 2) The learned Magistrate is directed to reconsider the matter, in the light of Annexure-III and also in the light of the dictum laid down by this Court in Parameshwaran Nair's case (supra) and Kader's case (supra). SKS Sd/- P.V.KUNHIKRISHNAN JUDGE CRL.MC NO. 1802 OF 2018 8 APPENDIX OF CRL.MC 1802/2018 PETITIONER ANNEXURES Annexure-IV RESPONDENT ANNEXURES Annexure R 2(a) PETITIONER ANNEXURES ANNEXURE I ANNEXURE II ANNEXURE III

1. TRUE COPY OF THE DIARY EXTRACT IN CC NO 41/2017 OF THE FILE OF THE JUDICIAL MAGISTRATE OF FIRST CLASS- II, PERINTHALMANNA CERTIFIED COPY OF THE ORDER DATED 24.01.2017 IN C.M.P.NO. 967/2015 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-II, PERINTHALMANNA CERTIFIED COPY OF THE COMPLAINT FILED BY THE 2ND RESPONDENT BEFORE THE JUDICIAL MAGISTRATE OF FIRST CLASS - II, PERINTHALMANNA. TRUE COPY OF THE FIR IN CRIME NO.174/2014 OF PANDIKKAD POLICE STATION. TRUE COPY OF THE NEGATIVE FINAL REPORT IN CRIME NO 175/2014 OF PANDIKKAD POLICE STATION.