IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 7TH SEPTEMBER 2009 / 16TH BHADRA 1931 Crl.MC.No. 1111 of 2008(D) ------------------------------------ CC.1106/2006 of JUDL. MAGISTRATE OF FIRST CLASS, KASARAGOD ............................................... PETITIONER(S): 1ST ACCUSED: -------------------------------------------- P.NARAYANAN NAIR, AGED 72 YEARS, S/O.KANNAN NAIR, RESIDING AT KODUVALLYMOOLA, ANINHA, PERUMBALA VILLAGE, PERUMBALA POST, KASARGOD TALUK, KASARGOD DISTRICT. BY ADV. SRI.T.MADHU RESPONDENT(S): STATE & COMPLAINANT: -------------------------------------------------------------- 1. THE STATION HOUSE OFFICER, KASARGOD POLICE STATION, KASARGOD, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. T.KARUNAKARAN NAMBIAR, AGED 50 YEARS, S/O.M.NARAYANAN NAMBIAR, RESIDING AT ANINHA, PERUMBALA VILLAGE, PERUMBALA POST, KASARGOD TALUK, KASARGOD DISTRICT. PUBLIC PROSECUTOR SRI.AMJAD ALI FOR R1. SRI.JAWAHAR JOSE FOR R2 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 07/09/2009 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No.1111 OF 2008 =========================== Dated this the 7th day of September,2009 ORDER Petitioner is the first accused in C.C.1106/2006 on the file of Judicial First Class Magistrate's Court, Kasaragod taken cognizance for the offence under section 447, 427 and 506(i) read with section 34 of Indian Penal Code on Annexure A3 protest complaint. Second respondent is the de facto complainant. Second respondent had originally filed Annexure A1 complaint which was sent for investigation under section 156(3) of Code of Criminal Procedure based on which Annexure A2 FIR and Crime 25/2006 was registered. After investigation a refer report was submitted. Annexure A3 protest complaint was filed thereafter contending that without proper investigation the refer report was filed alleging that the three accused committed offence under section 447, 427 and 506(i) read with section 34 of Indian Penal Code. Apart from recording the sworn statement of the second respondent, sworn statement of a witness was also recorded. Learned Magistrate on the said sworn statements and the materials produced, Crl.M.C.1111/2008 2 recording that prima facie a case is made out, took cognizance of the offence. This petition is filed under section 482 of the Code of Criminal Procedure to quash the proceedings initiated on Annexure A3 complaint contending that learned Magistrate should not have taken cognizance after a refer report was submitted by the police on investigation. 2. Learned counsel appearing for the petitioner and the learned counsel appearing for the second respondent were heard. 3. Learned counsel appearing for the petitioner relying on the decision of this Court in Parameswaran Nair v. Surendran (2009 (1) KLT 794) argued that the learned Magistrate did not apply his mind when cognizance was taken and should not have taken cognizance on Annexure A3 complaint when no new additional materials produced or were alleged except repeating the allegations in Annexure A1 complaint. It is therefore argued that the cognizance taken is to be quashed. Learned counsel also argued that as seen from Annexure A1 and A3 complaints, O.S.349/2005 was filed by the second respondent against the accused alleging that they are attempting to trespass into the property and evidenced by Annexure A4 judgment, the suit Crl.M.C.1111/2008 3 was dismissed for default the application filed for a temporary prohibitory injunction was dismissed and later evidenced by Annexure A5 order the application filed to restore the suit was also dismissed and in such circumstance the prosecution is clearly without bona fides and is to be quashed. 4. Learned counsel appearing for the second respondent submitted that along with Annexure A3 complaint second respondent had produced photographs showing the commission of the offence along the negative and the learned Magistrate was justified in taking cognizance on the sworn statement of the complainant and the witness and in such circumstance there is no reason to quash the complaint. 5. Annexure A3 complaint shows that the allegations against the petitioner is that not with regard to the incident based on which the civil suit was instituted for a permanent prohibitory injunction restraining the defendants, who are the accused in the case, from trespassing into the plaint schedule property contending that they are claiming a way through the boundary of the property of the second respondent though they have another separate way to their house. Annexure A3 complaint shows that the allegations of the second respondent was that because of the institution of the civil suit the accused Crl.M.C.1111/2008 4 trespassed into the residential property of the second respondent on 1.1.2006 and armed with chopper intimidated the second respondent and also pelted stones at the house and caused damage to the window by breaking its glass and thereby committed the offence. In such circumstance for the reason that civil suit was dismissed and even the application filed for restoration of the suit was dismissed, the private complaint cannot be quashed. The question is whether there is sufficient material to take cognizance of the offence. 6. Learned Magistrate has not taken cognizance on Annexure A3 complaint alone. Instead sworn statement of the second respondent as well as a witness was recorded. Hence it cannot be said that the learned Magistrate mechanically took cognizance and therefore the cognizance taken is to be quashed. The case is being tried as a warrant trial. The complainant as well as his witnesses are to be examined in the presence of the accused as provided under section 244 of Code of Criminal Procedure. Petitioners are entitled to cross examine the witnesses or are entitled to defer the cross examination at that stage. Based on the evidence, learned Magistrate has to consider whether a charge is to be framed or the accused are to be discharged. Learned Magistrate necessarily has Crl.M.C.1111/2008 5 to hear the accused at that stage. Petitioners are entitled to raise all the contentions, before the learned Magistrate at that stage and seek an order of discharge. With that liberty, the petition is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006