IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 31ST MARCH 2009 / 10TH CHAITHRA 1931 Crl.MC.No. 4062 of 2006() ------------------------- CC.335/2005 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II,NEYYATTINKARA PETITIONER(S): ACCUSED: 1. GLADSON SAMUEL @ BABU, S/O.RUSSEL, KUTTANINNA VEEDU, ARUMANNOOR DESOM, THIRUPURAM, NEYYATTINKARA. 2. SANTHA D/O.SUGUNABHAI, KANJIRAVILAKATHU VEEDU, THIRUPURAM DESOM, NEYYATTINKARA. 3. EDISON, DO. DO. 4. CHANDRASENAN @ CHANDRAN, S/O.NALLATHAMPI NADAR, THAVVAVILA VEEDU, ARUMANOOR DESOM, NEYYATTINKARA. 5. PUZHPABHAI SYAMALA, W/O.CHANDRASENAN, DO. DO. 6. LATHA W/O.GLADSON SAMUEL, DO. DO. 7. ROBORT SAMUEL @ SHAJI, S/O.RUSSEL, KUTTANINNA VEEDU, DO. DO. BY ADV. SRI.G.SUDHEER RESPONDENT(S): COMPLAINANT & STATE: 1. DANDAS S/O.CHARALS NADAR, KUTTANINNATHIL VEEDU, ARUMANOOR DESOM, THIRUPPURAM VILLAGE, NEYYATTINKARA. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADVS. SRI.SIBY MATHEW FOR R1 SRI.PHILIP J.VETTICKATTU FOR R1 PUBLIC PROSECUTOR SRI. MOHANAN V.T.K.-R2 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 31/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: C.T. RAVIKUMAR, J. -------------------------------------------- CRL. M.C. NO. 4062 OF 2006 -------------------------------------------- Dated this the 31st day of March, 2009 O R D E R The petitioners are the accused in C.C. No.335 of 2005 on the file of the Judicial First Class Magistrate's Court II, Neyyattinkara which in fact is a protest complaint. The allegation against the petitioners/accused is that on 24.10.2004 at 12 noon, the accused, seven in number, obstructed the pathway being used by the complainant. The complainant had earlier approached the Munsiff Court, Neyyattinkara against accused Nos. 1 and 2 when they caused obstruction to the user of the said pathway by filing O.S. No. 943 of 2003 and had obtained an order of injunction. On 26.3.2004, an ex parte decree was passed in his favour in the said suit. It is alleged that violating the decree passed by the civil court, the accused persons planted the trees and when the complainant questioned the same, the accused persons committed the offences alleged against each of them. Serious allegations were raised against the 7th accused. It is the case of the complainant that the 7th accused pulled the sari of his wife and thereby outraged her modesty. Yet, another allegation is that the third accused had put a chopper on her neck and threatened to kill her. In short, the CRL.M.C. NO. 4062/2006 2 allegations are that they have committed offences punishable under Sections 143, 147, 148, 149, 188, 283, 341, 323, 324, 354 and 506(2) of the Indian Penal Code. On receipt of the said complaint, the learned Magistrate forwarded the same to the police under Section 156(3) Cr.P.C. However, after conducting investigation the police filed Annexure B refer report stating that the complaint is false. According to the petitioners/accused, the first respondent filed Annexure A protest complaint on being aggrieved by the refer report submitted by the police and at the same time, Annexure C charge sheet would reveal that he was made an accused along with another by the Poovar police based on a complaint filed by the first petitioner herein under Sections 447, 427 and 34 I.P.C. The said case is pending before the very same court as C.C. No.1203 of 2004. According to the petitioners/accused persons, in view of the fact that the earlier complaint filed by the first respondent had already culminated in Annexure B refer report, the learned Magistrate ought to have proceeded further with the case by conducting an enquiry only if there are other materials. In short, according to the petitioners, there are procedural illegality and irregularity in the action on the part of the learned Magistrate in taking cognizance of the offence and issuing summons to them. CRL.M.C. NO. 4062/2006 3 2. Admittedly, the complaint filed by the first respondent is a protest complaint. The earlier complaint preferred by the defacto complainant culminated in Annexure B refer report. The short question, therefore, is whether in such circumstances, the learned Magistrate can issue summons after taking cognizance of the complaint and without looking into the materials in the refer report. This question has already been considered by this Court in the decision in Parameswaran Nair v. Surendran, reported in 2009(1) K.L.T. 794. After considering the relevant provisions and the various decisions on the point, this Court in the said decision held that the Magistrate is not bound by the opinion formed by the Investigating Officer in referring the case and that options are available to the Magistrate on receipt of the final report on the complaint forwarded to the police under Section 156(3) Cr.P.C. for investigation. It is held that in such cases, the Magistrate will have three options: (i) he may accept the report and take cognizance of the offence and issue process, (ii) he may disagree with the report and direct further investigation under sub-section (3) of Section 156 Cr.P.C. and (iii) he may accept the report and drop the proceedings. It is also held that the Magistrate can disagree with the findings in the report and take the view that there are sufficient grounds for proceeding further and take cognizance and issue process. But, the fact that no specific order was CRL.M.C. NO. 4062/2006 4 recorded that final report is not accepted or the fact that the decision to take cognizance of the offence and issue process was recorded in the protest complaint, by themselves are not fatal. 3. It is evident from the facts borne out in this case that the learned Magistrate can be taken to have disagreed with the finding in Annexure B refer report and thus arrived at a conclusion that there are sufficient grounds to proceed further with the matter. Admittedly, the sworn statement of the complainant/first respondent was taken by the learned Magistrate in C.C. No.335 of 2005. It is only thereafter and arriving at a conclusion that there are materials to take cognizance of such complaint that the learned Magistrate issued summons to the accused persons. In that regard, the petitioners/accused have another grievance. According to them, the learned Magistrate had actually relied only on the sworn statement of the complainant and the witnesses were not examined. I do not think that such a contention is available to the petitioners in view of the decision of this Court reported in Hassan, M.M. v. Arunkumar V.A. and another, I.L.R. 2009(1) Kerala 637. Non-examination of witnesses for the purpose of taking cognizance can be a ground for the complainant, if his complaint is dismissed . But it cannot be a ground for the accused once the Magistrate issues summons upon finding that there are sufficient CRL.M.C. NO. 4062/2006 5 materials for taking cognizance. In short, the petitioners herein could not establish the illegality or irregularity in the procedure adopted by the learned Magistrate in the matter of taking cognizance and issuing summons. The petitioners have failed to convince me that the learned Magistrate has not considered the questions on the proper perspective. It be so, I am only to hold that there is nothing to invoke the inherent power under Section 482 Cr.P.C. in this case to quash Annexure A complaint. In view of the discussions above, I am of the opinion that the Crl. M.C. lacks merit and it is liable to be dismissed. Accordingly, the Crl. M.C. is dismissed. (C.T. RAVIKUMAR, JUDGE) sp/ CRL.M.C. NO. 4062/2006 6 C.T. RAVIKUMAR, J. CRL. M.C. NO. 4062/2006 O R D E R 31st March, 2009 CRL.M.C. NO. 4062/2006 7