IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN TUESDAY, THE 11TH OCTOBER 2011 / 19TH ASWINA 1933 Crl.MC.No. 1342 of 2011() ------------------------- CMP.2074/2010 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, TRIVANDRUM .................... PETITIONER(S): --------------- LUMINA.B., D/O FLORI LOPEZ, HELEN COTTAGE, PALLITHURA, NEAR V.S.S.C.COLONY, THIRUVANANTHAPURAM. BY ADV. SRI.SHAJIN S.HAMEED RESPONDENT(S): --------------- 1. THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. 2. THE SUB INSPECTOR OF POLICE, THUMBA POLICE STATION, THIRUVANANTHAPURAM DISTRICT 3. THE SUB INSPECTOR OF POLICE, KAZHAKUTTOM POLICE STATION, THIRUVANANTHAPURAM DISTRICT. 4. RYNER LOPEZ, AGED 33, S/O SHELTON LOPEZ, THAIVILAKOM HOUSE, ST.THOMAS NAGAR, PALLITHURA, THIRUVANANTHAPURAM, PIN-695586. PUBLIC PROSECUTOR SRI.B.JAYASURYA FOR R1-R3. ADV. SRI.DEVAN RAMACHANDRAN FOR R4 SRI.K.M.ANEESH FOR R4 SRI.K.SANTHOSH KUMAR (KALIYANAM) FOR R4 SRI.S.NIKHIL SANKAR FOR R4 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 11/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: SU CR.M.C.NO.1342/2011 APPENDIX PETITIONER'S ANNEXURES: ANNEXURE A: CERTIFIED COPY OF THE COMPLAINT FILED BY THE 4TH RESPONDENT BEFORE THE JUDICIAL IST CLASS MAGISTRATE COURT-II, THIRUVANANTHAPURAM. ANNEXURE B: COPY OF THE F.I.R IN CRIME NO.478/2010 OF THUMBA POLICE STATION. ANNEXURE C: COPY OF THE REPORT FILED BY THE SUB INSPECTOR OF POLICE, THUMBA BEFORE THE JFCM-II, THIRUVANANTHAPURAM. ANNEXURE D: COPY OF THE F.I.R IN CRIME NO.696/2010 OF KAZHAKUTTOM POLICE STATION. ANNEXURE E: COPY OF THE APPOINTMENT LETTER DATED 15/4/2011 ISSUED FROM THE STATE BANK OF INDIA, REGIONAL BUSINESS OFFICE, VELLORE. RESPONDENTS' ANNEXURES: NIL. /TRUE COPY/ P.A. TO JUDGE SU N.K.BALAKRISHNAN, J. ---------------------------------------------------- Crl.M.C.No.1342 of 2011 ---------------------------------------------------- Dated this the 11th day of October, 2011 Order The complaint was filed before the J.F.C.M.Court-II, Trivandrum. The offences alleged against the petitioner are under Sections 494, 323 and 406 r/w 34 IPC. When the complaint was filed, the learned Magistrate forwarded the same to the police under Section 156(3) Cr.P.C. It seems it was not noticed by the learned Magistrate that cognizance of the offence under Section 494 IPC can be taken only on a complaint by the aggrieved party as provided under Section 198 Cr.P.C. and on a report under Section 173(2) Cr.P.C. Therefore, the investigation as regards the offence under Section 494 IPC shall remain closed. But as regards the offence under Sections 323 and 406 r/w 34 IPC, the investigation could proceed. But it is submitted by the learned Public Prosecutor that the charge sheet was filed by the police for the offences including Section 494 IPC. In view of the bar under Section 198 Cr.P.C., cognizance cannot be taken in respect of the offence under Section 494 IPC based on the report filed by the Crl.M.C.1342/11 2 police under Section 173(2) Cr.P.C. Hence that part of the order taking cognizance is quashed. The order of quashment of the offence under Section 494 IPC will not affect the cognizance taken in respect of the offences under Section 323 and 406 r/w 34 IPC. Of course, the accused can apply for discharge or for other reliefs at the appropriate stage. It is also made clear that if the complainant so chooses, she can file a fresh complaint with regard to the offence under Section 494 IPC if there is no other legal impediment. The Crl.M.C. is disposed of accordingly. N.K.BALAKRISHNAN, JUDGE. srd Crl.M.C.1342/11 3