IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 7TH DECEMBER 2010 / 16TH AGRAHAYANA 1932 Crl.MC.No. 2445 of 2010() ------------------------------------ CC.40/2008 of JUDL.MAGISTRATE OF FIRST CLASS COURT, KOLENCHERRY .................... PETITIONERS/ACCUSED ----------------------------------- 1. BENNY K.PETER, AGED 44 YEARS, S/O.PATHROSE, KUNNATHUMKULATHUKATTIL HOUSE, KADAMATTOM KARA, AIKKARANAD NORTH VILLAGE. 2. BINU MATHEW, AGED 36 YEARS, S/O.MATHEW, PUNNAKKATHU HOUSE, PINARMUNDA KARA, KUNNATHUNAD VILLAGE. 3. KURIAN, AGED 62 YEARS, S/O.PAILY, PUTHENPURAYIL HOUSE, KANDTAHIL IRINGOLE KARA, PERUMBAVOOR VILLAGE. BY SRI.P.VIJAYA BHANU, SENIOR ADVOCATE, ADV. SRI.M.REVIKRISHNAN. RESPONDENT/COMPLAINANT ------------------------------------------- 1. STATE OF KERALA,REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM. *ADDL. R2 IMPLEADED ADDL.R2: KRISHNAMOHAN @ UNNI, S/O.PANKAJAKSHAN NAIR, PULINATTU VEETTIL, 1ST MAIL KSHB COLONY, KARATTU PALLIKKARA, PERUMBAVOOR VILLAGE. *IMPLEADED AS ADDL. 2ND RESPONDENT VIDE ORDER DATED 07/12/2010 IN CRL.MA.6528/2010 IN CRL.MC.2445/2010. R1 BY PUBLIC PROSECUTOR MR.P.A. SALIM. R2 BY ADV. SRI.R.BINDU (SASTHAMANGALAM), SRI.PRASANTH M.P. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 07/12/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.M.C.NO.2445 OF 2010 --------------------------------------------- Dated 7th December, 2010 O R D E R Based on Annexure-B final report submitted by the Sub Inspector of Police, Puthencruz, C.C.40/2008 was taken cognizance for the offence under Section 420 of Indian Penal Code, against the second respondent in crime No.312/2007. Crime No. 312/2007 was registered on Annexure-A complaint filed by the first petitioner before Judicial First Class Magistrate, Kolencherry and sent for investigation under Section 156(3) of Code of Criminal Procedure. Annexure-D proceeding paper of the learned Magistrate shows that after issuing summons to the accused, the Deputy Superintendent of Crmc 2445/10 2 Police, filed petition under Section 173(8) of Code of Criminal Procedure for permission to conduct a further investigation and it was allowed on 29/4/2008 and further proceedings in C.C.40/2008 was stayed. After completing the further investigation, Annexure-C final report was submitted. As per the final report, petitioners, including the de facto complainant in C.C.40/2008, are the three accused. The offence alleged are under Section 420 read with Section 34 of Indian Penal Code. Prosecution case in Annexures-B and C final reports are mutually contradictory. Annexure-D final report shows that on receipt of the final report, learned Magistrate issued summons to the accused namely, petitioners without specifically recording that the cognizance of any offence was taken. Petition is filed under Section 482 of Code of Criminal Procedure by Crmc 2445/10 3 the petitioners, the said accused, to quash the proceedings. 2. Learned counsel appearing for the petitioners, second respondent and learned Public Prosecutor were heard. 3. Based on Annexure-B final report Judicial First Class Magistrate has already taken cognizance for the offence under Section 420 of Indian Penal Code. Once cognizance is taken, accused is either to be discharged or to be acquitted or convicted. Learned Magistrate cannot proceed, against another accused without deciding the fate of the cognizance taken in C.C.40/2008 except by invoking the power under Section 319 of Code of Criminal Procedure. 4. Sub Section 8 of Section 173 of Code of Criminal Procedure, provides that on completing further investigation, investigating Crmc 2445/10 4 officer shall forward to the Magistrate, a further report or reports regarding such evidence in the form prescribed and the provisions of sub Sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under Sub Section (2). 5. Though learned Magistrate is competent to take cognizance of the offence on a final report submitted under Section 173(8) of Code of Criminal Procedure, when the case projected in Annexure-C final report is mutually destructive and contradictory to the Annexure-B final report based on which cognizance was already taken, learned Magistrate cannot take cognizance against the accused shown in the report, which include the de facto complainant in C.C.40/2008, based on the report submitted under Section 173(8) Crmc 2445/10 5 Code of Criminal Procedure, without considering the cognizance originally taken. If further report submitted under Section 173(8) discloses that along with the accused against whom the cognizance was already taken, some other accused are also involved, those accused also could be tried along with the original accused. Magistrate can in such a case take cognizance of the offence against those accused based on the final report submitted under Section 173(8) and proceed the case along with the original accused. Otherwise, cognizance is to be taken separately, as if it is a final report submitted under Section 173(2) of Code of Criminal Procedure. If the Magistrate finds that cognizance is to be taken against the accused shown in the final report filed under Section 173(8) of Code of Criminal Procedure it could only be taken finding that the cases Crmc 2445/10 6 originally submitted in the final report is not correct and the case alleged in the further final report submitted under Section 173(8) is correct. If so, learned Magistrate has to discharge the accused against whom cognizance was taken in C.C.40/2008. On the other hand, if the Magistrate finds that both the cases are to be tried, as one will not destroy the other, Magistrate can take cognizance of the offence against the accused in Annexure-C report based on the further report and proceed with the case, separately. Magistrate is competent to consider and find that further report submitted under Section 173 (8) cannot be accepted. But it is for the Magistrate to consider Annexure-C further report after, hearing the Prosecutor and also the de facto complainant, if he appears. Learned Magistrate shall necessarily hear the Crmc 2445/10 7 de facto complainant in C.C.40/2008, as cognizance was taken on the first report submitted under Section 173(2) of Code of Criminal Procedure. If so the cognizance taken and summons issued to the petitioners is to be quashed. Petition is allowed. Cognizance taken against the petitioners in C.C.40/2008, based on Annexure-C final report submitted under Section 173(8) is quashed. Learned Magistrate is directed to proceed with C.C.40/2008 with the original accused as the accused and on hearing the prosecution and the de facto complainant has to decide whether second respondent, the accused is to be discharged in the light of the evidence collected on further investigation and the conclusions in Annexure-C further report submitted under Section 173(8) of Code of Criminal Procedure. He shall also Crmc 2445/10 8 consider whether cognizance against the petitioners is to be taken based on the further report submitted under Section 173(8) or not. If the Magistrate decides to take cognizance against the petitioners herein based on Annexure-C further report submitted under Section 173(8) of Code of Criminal Procedure, retaining the case already taken cognizance in C.C.40/2008 against the second respondent, learned Magistrate shall assign a separate case number to that case. Petition is disposed accordingly. M.SASIDHARAN NAMBIAR, JUDGE. uj.