IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 8TH OCTOBER 2010 / 16TH ASWINA 1932 Crl.MC.No. 2268 of 2010() ------------------------- CC.126/2008 of JUDL.MAGISTRATE OF FIRST CLASS-I, MUVATTUPUZHA .................... PETITIONER(S): ------------------------ CHINCY, 41/149, AMMANKOVIL ROAD, ERNAKULAM. BY ADV. SRI.S.RAJEEV RESPONDENT(S): ---------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, (CRIME NO.64/2007 OF PIRAVAM POLICE STATION, ERNAKULAM). 2. BENNY VARGHESE, AGED 40 YEARS, S/O.K.C.VARGHESE, MEMMUKHAM KARA, MANEED VILLAGE, MUVATTUPUZHA 686 661, ERNAKULAM DISTRICT. R1 BY PUBLIC PROSECUTOR SMT. M.K.PUSHPALATHA R2 BY BENNY VARGHESE (PARTY IN PERSON) THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 08/10/2010 ALONG WITH CRMC NO. 2920 OF 2010, CRMC NO. 3387 OF 2010 AND CRMC NO. 3449 OF 2010,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR, J. --------------------------------------------------------------- Crl.M.C Nos.2268, 2920, 3387 & 3449 OF 2010 --------------------------------------------------------------- Dated this the 8th day of October, 2010. O R D E R Petitioners in Crl.M.C Nos.2268, 2920, 3387, 3449 of 2010 are respectively accused 1 to 7 in C.C.No.126 of 2008. Petitions are filed under Section 482 of Code of Criminal Procedure to quash the cognizance taken on a private complaint filed by the first respondent. 2. The learned counsel appearing for the petitioners and the first respondent in person were heard. 3. Learned counsel appearing for the petitioners argued that based on the first information furnished by one Manju, Crime No. 64 of 2007 was registered and later during the investigation, first respondent filed a private complaint and after a final report has been submitted in Crime No.64 of 2007 which was taken cognizance as O.S.No.171 of 2007, learned Magistrate has taken cognizance of the offences without conducting an enquiry under Section 202 of Code of Criminal Procedure or without considering the final report submitted. It is therefore argued that the cognizance taken is to be quashed in view of the statement that Crl.M.C Nos.2268, 2920, 3387 & 3449 OF 2010 2 the address of the petitioner in Crl.M.C 2268 of 2010 shown is not correct and he is not residing within the territorial limits of Judicial First Class Magistrate, Muvattupuzha and, therefore, it is mandatory that an enquiry under Section 202 of Code of Criminal Procedure is to be conducted before taking cognizance and as it was reiterated a report was called for from the learned Magistrate, and whether inquiry under Section 202 Code of Criminal Procedure was conducted. 2. The report submitted to the learned Magistrate shows that after recording the statement of complainant's witness who was present, it was adjourned for further evidence and one more witness was examined. It is only thereafter learned Magistrate has taken cognizance of the offences. 3. First respondent made available certified copy of the proceeding paper in CC.126 of 2008. The proceeding paper shows that complaint was filed on 17.04.2007 and it was posted for recording statement of the complainant and witness and it was adjourned the adjourned date finding that Crime.No.64 of 2007 was already registered and being investigated, the learned Magistrate postponed the enquiry as the investigation in Crime.No.64 of 2007 of Piravom Police station is to be completed. Crl.M.C Nos.2268, 2920, 3387 & 3449 OF 2010 3 The proceeding dated 30.11.2007 shows that a final report in Crime No.64 of 2007 was submitted for verification and it was posted to 7.12.2007 on which day the learned Magistrate has recorded that based on final report cognizance was taken against the accused Nos.3 and 4 and one Chakkappan. It is there after the case was posted for recording the statement of the first respondent under Section 244 of Code of Criminal Procedure. The statement of the first respondent and one witness was recorded on 15.12.2007. It was thereafter adjourned to further evidence on 11.1.2008. On that day complainant was represented, one witness was present and their sworn statements were recorded and thereafter it was posted for hearing. The order dated 18.3.2008 reads:- “Petitioner present. Perused the records. Sub Inspector of Police, Piravom has already filed charge sheet in Crime No.64 of 2007 regarding the incident against A3 and A4 herein and another. Petition has made out the involvement of A1, A2, A5 to 9 here in as accused Nos.1 to 7 filed as C.C.No.126 of 2008. Issue summons to accused to 24.5.2008” 4. Summons was issued as provided under Section 202 of Code of Criminal Procedure. The question is whether the said cognizance taken is to be quashed on the contentions raised by the petitioners. Crl.M.C Nos.2268, 2920, 3387 & 3449 OF 2010 4 5. Though learned counsel appearing for petitioners vehemently argued that the learned Magistrate has not considered the final report submitted in Crime.No.64 of 2007 and without applying the mind, mechanically it was taken cognizance of the offences, on a private complaint. In the light of the proceeding paper recorded by 18.3.2008, I cannot agree with the submission. When taking cognizance on a private complaint, the Magistrate is not to record the reasons for taking cognizance. Order must reflect the fact that Magistrate applied mechanical mind on the relevant facts. The order dated 18.3.2008 shows that Magistrate has considered the relevant facts and decided to take cognizance as against some of the accused alone, on satisfying that they are also involved in the incident or they are not seen involved as per the final report. In such circumstances, I do not find it just or proper to exercise jurisdiction of this Court under Section 482 of Code of Criminal Procedure to quash the cognizance taken. Petitioners are entitled to raise all the contentions raised herein before the learned Magistrate and seek an order of discharge as provided under Section 245 (1) of Code of Criminal Procedure. The learned counsel appearing for the petitioner in Crl.M.C.No.3387 of 2010, Fifth accused, submitted Crl.M.C Nos.2268, 2920, 3387 & 3449 OF 2010 5 that she did not received any summons. So fifth accused is at liberty to appear before the learned Magistrate and raise all the contentions. The learned counsel submitted that presence of the petitioners may be dispensed with for that purpose. It is up to the petitioners to apply before Magistrate under section 205 of Code of Criminal Procedure to dispense with his presence. If such an application is filed, learned Magistrate not to insist for the personal presence of the petitioners for that purpose. Cri.M.Cs are disposed of as above. M.SASIDHARAN NAMBIAR, JUDGE. mns