IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 24TH AUGUST 2009 / 2ND BHADRA 1931 Crl.MC.No. 1412 of 2009() ------------------------------------ CC NO.229/2008 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-III, KOTTAYAM. ............. PETITIONERS/ACCUSED: ----------------------------------- 1. ANTONY, S/O. DEVASSIA, KULATHIL HOUSE, PODUVAL LANE, THIRUNAKKARA, KOTTAYAM. 2. BENCY,S/O. THOMAS,THIRUNILAM VEEDU, NEDUMUDI, ALAPPUZHA. 3. PRAVEEN, S/O THANKAPPAN, KUMARIVILAKAM, ANCHUTHENGU, VAKKOM 4. ANU, S/O. PATHROSE, SHALON NIVAS, KAIKARA, VAKKOM. 5. PRASAD, S/O. BABU, KADAKATHU HOUSE, KAIKARA, VAKKOM. 6. SUNI, S/O. KARUNAKARAN, KALLUMMOOD, KAIKARA, VAKKOM. BY ADV. MR.M.J.THOMAS RESPONDENT/RESPONDENT/STATE: ----------------------------------------------------- SUB INSPECTOR OF POLICE, KOTTAYAM WEST POLICE STATION, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR.S.U. NAZAR. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 24/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.1412 of 2009 -------------------------- ORDER Petitioners are the accused in C.C.No.229/2008 on the file of Judicial First Class Magistrate's Court-III, Kottayam. This petition is filed under Section 482 of Code of Criminal Procedure to quash the cognizance taken by the Magistrate on Annexure- 6 final report contending that an offence under Section 188 of Indian Penal Code should not have been taken cognizance without a complaint in writing as provided under Section 195(1) of Code of Criminal Procedure. 2.Learned counsel appearing for the petitioners and learned Public Prosecutor were heard. 3. Prosecution case is that petitioners formed themselves into an unlawful assembly on 4.6.2008 with the common object of constructing a building in violation of the order passed by the Honourable Supreme Court and thereby committed offences under CRMC 1412/09 2 Sections 143 and 188 read with Section 149 of Indian Penal Code. 4. Under clause (a)(i) of sub-section (1) of Section 195 of Code of Criminal Procedure, no court shall take cognizance of any offence punishable under Sections 172 to 188 of Indian Penal Code, except on a complaint in writing of that court or of some other court to which that court is subordinate. The allegation of committing the offence under Section 188 of Indian Penal Code is that petitioners violated the order passed by the Honourable Supreme Court, prohibiting construction of the building. If an offence under Section 188 of Indian Penal Code, on the above allegation, is to be taken cognizance, there should be a complaint in writing either by the Honourable Supreme Court or by any court authorised in that behalf. When, admittedly, there is no such authorisation and complaint was not filed as per the order of the Honourable Supreme Court, petitioners cannot be CRMC 1412/09 3 prosecuted for the offence under Section 188 of Indian Penal Code. When petitioners cannot be prosecuted for the offence under Section 188, they cannot be prosecuted for the offence under Section 143 with the aid of Section 149 of Indian Penal Code. Continuation of the proceedings is, therefore, only an abuse of process of the court. In such circumstances, petition is allowed. C.C.No.229/2008 on the file of Judicial First Class Magistrate's Court-III, Kottayam is quashed. 24th August, 2009 (M.Sasidharan Nambiar, Judge) tkv