IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 20TH JUNE 2011 / 30TH JYAISHTA 1933 Crl.MC.No. 1840 of 2011() --------------------------------------- ST.NO. 4516/2009 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, TRIVANDRUM .................... PETITIONER(S): ACCUSED ---------------------------------------- THOMAS MUTHOOT,MUTHOOT HOUSE, KOZHENCHERRY, PATHANAMTHITTA DISTRICT. BY ADV. SRI.C.M.STEPHEN RESPONDENT(S): ---------------------------- 1. THE STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.PIN- 682 031 2. THE ASSISTANT LABOUR OFFICER, THIRUVANANTHAPURAM,FIRST CIRCLE,LABOUR OFFICE ANNEXE,NEAR RESERVE BANK OF INDIA,BAKERY JUNCTION THIRUVANANTHAPURAM.PIN- 695 001. R1 & R2 BY PUBLIC PROSECUTOR SRI.MANU THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 20/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts CRMC.NO.1840/2011 APPENDIX PETITIONER'S ANNEXURES: ANNEX.A1: COPY OF THE PETITION FILED BY THIS PETITIONER IN CRL.MC.1764 OF 2010. ANNEX.A2: COPY OF THE JUDGMENT IN CRL.MC.NO.1764 OF 2010. ANNEX.A3: COPY OF THE PETITION FILED BEFORE THE LEARNED MAGISTRATE UNDER SECTION 251 OF THE CODE OF CRIMINAL PROCEDURE. ANNEX.A4: COPY OF THE ORDER OF THE LEARNED MAGISTRATE IN CMP.NO.7339 OF 2010 IN ST.NO.4516 OF 2009, DATED THE 2ND OFAPRIL, 2010. ANNEX.A5: COPY OF THE DECISION OF THE SUPREME COURT REPORTED IN 2004 (3) KLT 382 (SC). RESPONDENT'S ANNEXURES: NIL /TRUE COPY/ P.A.TO.JUDGE sts THOMAS P JOSEPH, J. ---------------------------------------- Crl.M.C.No.1840 of 2011 --------------------------------------- Dated this 20th day of June, 2011 ORDER Learned Public Prosecutor takes notice for respondents. 2. Petitioner is accused in S.T.No.4516 of 2009 of the Court of learned Judicial First Class Magistrate-I, Thiruvananthapuram for offence punishable under Sec.29(3)(b) of the Kerala Shops and Commercial Establishments Act and Rules (for short, "the Act and Rules”). Petitioner approached this Court with Crl.M.C.No.1764 of 2010 to quash proceeding against him raising certain contention which according to him would entitle him to quash the proceeding. This Court by Annexure-A2, order dated May 31, 2010 permitted petitioner to raise the question when particulars of offence is read over to him under Sec.251 of the Code of Criminal Procedure (for short, "the Code”). Pursuant to that order petitioner filed C.M.P.No.7339 of 2010 with the prayer that in the circumstances stated therein learned Magistrate, invoking Secs.251 and 258 of the Code and in the light of the decision in Kamala Rajaram v. State of Kerala (2005 (3) KLT 617) may discontinue proceeding against him. Learned Magistrate passed Annexure-A4, order dated April 02, Crl.M.C.No.1840 of 2011 -: 2 :- 2011 dismissing Annexure-A3, petition. That order is under challenge. Learned counsel submits that learned Magistrate has not complied with the direction contained in Annexure-A2, order passed by this Court. I have heard learned Public Prosecutor also. 3. It is seen from Annexure-A4, order that referring to the decision of the Supreme Court in Adalat Prasad v. Rooplal Jindal (2004 (3) KLT 382 (SC)) learned Magistrate has opined that once cognizance is taken he cannot review that order and stop further proceeding against petitioner. Learned Magistrate also observed that Sec.258 of the Code has no application since the present case arose on a private complaint. 4. On going through Annexures-A2 to A4, orders I am inclined to think that learned Magistrate was not correct in taking the said view and dismissing Annexure-A3, petition. This Court in Annexure-A2, order making specific reference to the decision in Kamala Rajaram v. State of Kerala (supra) permitted petitioner to make a submission before learned Magistrate by filing a petition under Sec.251 of the Code through counsel and the learned Magistrate was directed to dispose of the same without insisting on personal appearance of petitioner. It is seen that in Kamala Rajaram v. State of Kerala (supra) Crl.M.C.No.1840 of 2011 -: 3 :- learned Judge of this Court, referring to the decision of the Supreme Court in Adalat Prasad v. Rooplal Jindal (supra) (relied on by the learned Magistrate) has held that in a summons cases instituted on a complaint when the complaint does not disclose any offence, it is within the power of the Magistrate to discontinue proceeding invoking proceeding under Sec.251 r/w Sec.258 of the Code. In that view of the matter learned Magistrate was not correct in referring to the decision in Adalat Prasad v. Rooplal Jindal (supra) and declining to consider the contention of petitioner, under Sec.251 of the Code judicial propriety and discipline required learned Magistrate to proceed as directed in Annexure-A2, order of this Court. For the said reason, the impugned order cannot stand and is liable to be set aside. I do so. Resultantly this criminal miscellaneous case is allowed. Annexure-A4, order is set aside and C.M.P.No.7339 of 2010 is remitted to the Court of learned Judicial First Class Magistrate-I, Thiruvananthapuram for decision. Learned Magistrate is directed to follow the direction contained in Annexure-A2, order, hear the contention of petitioner whether materials on record are sufficient to read out particulars of offence to the petitioner under Sec.251 of the Code and if the finding is that the Crl.M.C.No.1840 of 2011 -: 4 :- allegations are not sufficient to read out particulars, learned Magistrate has to comply with the directions contained in Kamala Rajaram v. State of Kerala (supra) and pass appropriate orders accordingly. I make it clear that I have not expressed any opinion on merit of the contentions raised by the petitioner. (THOMAS P JOSEPH, JUDGE) Sbna/-