IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 8TH DECEMBER 2010 / 17TH AGRAHAYANA 1932 Crl.MC.No. 4504 of 2010() ------------------------------------- CC.3289/2009 of ADDL.CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM .................... PETITIONER/ACCUSED ---------------------------------- VRINDA VARMA, MANAGER, P.R.O APPOLLO SINDOORI LTD., 2ND FLOOR, USNAZ TOWERS, RAVIPURAM, ERNAKULAM. BY SRI.P.VIJAYA BHANU, SENIOR ADVOCATE, ADV. SRI.M.REVIKRISHNAN, SRI.UNNI SEBASTIAN KAPPEN. RESPONDENTS/COMPLAINANT & STATE ----------------------------------------------------------- 1. GEORGEKUTTY ABRAHAM, S/O.ABRAHAM, AANITHOTTATHIL HOUSE, LALAM VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT-686 013. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.NOBLE MATHEW. R2 BY PUBLIC PROSECUTOR MR.I.V. PRAMOD. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 08/12/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.M.C.NO.4504 OF 2010 --------------------------------------------- Dated 8th December, 2010 O R D E R A refer report was filed by the Sub Inspector of Police, Ernakulam Town South Police Station in Crime No.749/2009 before Chief Judicial Magistrate, Ernakulam. Notice was issued on the refer report to the de facto complainant by Additional Chief Judicial Magistrate, as he bound to issue notice to the de facto complainant, before considering the question whether the refer report is to be accepted or not. As the de facto complainant had received notice of the refer report from the police, he filed Annexure-A protest complaint before Additional Chief Judicial Magistrate. Crmc 4504/10 2 Additional Chief Judicial Magistrate without deciding the question whether the refer report is to be accepted or not, took cognizance of the offence in Annexure-A complaint and issued summons to the petitioner, the accused, in C.C.3289/09. Petition is filed under Section 482 of Code of Criminal Procedure to quash the cognizance taken. 2. Learned counsel appearing for the petitioner and learned counsel appearing for the first respondent/complainant in C.C.3289/2009 were heard. 3. Learned counsel appearing for the petitioner made available certified copy of the refer report, filed under Section 173(2) of Code of Criminal Procedure. It shows that on receipt of the refer report, learned Magistrate issued notice to the de facto complainant and as it was not served on two occasions, it now Crmc 4504/10 3 stands posted to 27/1/2011 for return of notice. It is thus clear that learned Chief Judicial Magistrate took cognizance of the offence on Annexure-A complaint, before considering whether the refer report is to be accepted or not. In such circumstances, cognizance taken in Annexure-A complaint in C.C.3289/2009 can only be quashed and Additional Chief Judicial Magistrate is to be directed to consider the question of taking cognizance along with the question whether refer report is to be accepted or not on 27/1/2011. First respondent can appear in the inquiry to be conducted by the Additional Chief Judicial Magistrate, on the refer report on that day. Petition is allowed. Cognizance taken on Annexure-A complaint in C.C.3289/2009 on the file of Additional Chief Judicial Magistrate, Crmc 4504/10 4 Ernakulam is quashed. Additional Chief Judicial Magistrate is directed to consider Annexure-A complaint along with the refer report which now stands posted to 27/1/2011. If Additional Chief Judicial Magistrate has already recorded, statement of the complainant witnesses as provided under Section 202 of Code of Criminal Procedure Magistrate need not record the statements again. Learned Magistrate shall consider whether cognizance is to be taken on Annexure-A complaint only on considering the refer report also and shall also consider whether the refer report is to be accepted or not. M.SASIDHARAN NAMBIAR, JUDGE. uj.