IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 22ND OCTOBER 2010 / 30TH ASWINA 1932 Crl.MC.No. 4294 of 2010() ------------------------------------- CC.511/2010 of CHIEF JUDICIAL MAGISTRATE COURT, KASARAGOD .................... PETITIONERS/ACCUSED NO.1 TO 3: ---------------------------------------------------- 1. BADRUNNISA, AGED 50 YEARS, W/O.LATE ABDUL HAMEED, MUBEEN MANZIL, AL/AMEEN NAGAR, KARBALA CROSS ROAD, KUDROLI, MANGALORE, KARNATAKA STATE. 2. MRS.MISRIYA, AGED 26 YEARS, D/O.LATE ABDUL HAMEED, RESIDING DO. 3. MR.IRFAN, AGED 35 YEARS, S/O.LATE ABDUL HAMMED, RESIDING DO. BY ADV. SRI.T.G.RAJENDRAN RESPONDENTS/COMPLAINANT/STATE: ----------------------------------------------------------- 1. SUNAINAZ, AGED 21 YEARS, W/O.FAIZAL AHAMMED, MUMTHAZ MANZIL, KUNJATHUR, MANJESHWAR, KASARAGODE TALUK, PIN-671 321. 2. SUB INSPECTOR OF POLICE, MANJESHWAR POLICE STATION. 3. STATE, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 & R3 BY PUBLIC PROSECUTOR MR.I.V. PRAMOD. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 22/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No. 4294 OF 2010 =========================== Dated this the 22nd day of October,2010 ORDER Petitioners are the accused and first respondent the de facto complainant in C.C.511/2010 on the file of Chief Judicial Magistrate, Kasaragod. First respondent filed Annexure II complaint before Chief Judicial Magistrate, Kasaragod alleging that petitioners, along with the first accused therein, the husband of the first respondent committed the offence under section 498A read with section 34 of Indian Penal Code. It was sent for investigation under section 156(3) of Code of Criminal Procedure. Crime 12/2009 of Manjeshwar Police Station was registered. After investigation Annexure III final report was submitted as against the husband alone, stating that there is no material against Crl.M.C.4294/2010 2 others and deleting petitioners from the array of the accused. The learned Magistrate has taken cognizance of the offence under section 498A, 323, and 324 read with section 34 of Indian Penal Code on Annexure III final report as C.C.233/2009. First respondent filed Annexure I complaint as against petitioners incorporating paragraph 11, which was not there originally in Annexure II complaint stating that petitioners also tortured and harassed her demanding dowry. Learned Magistrate after conducting inquiry under section 202 of Code of Criminal Procedure took cognizance of the offence as C.C.511/2010. This petition is filed under section 482 of Code of Criminal Procedure to quash the cognizance taken. 2. Learned counsel appearing for the petitioners was heard. 3. The argument of the learned counsel is that when learned Magistrate has taken cognizance on Annexure III report accepting the final report whereunder after investigation the Investigating Crl.M.C.4294/2010 3 Officer has reported that there is no material to show that petitioners committed any offence, learned Magistrate should not have taken cognizance on Annexure I complaint, which could only be a second complaint which is not maintainable. Learned counsel also argued that when after investigation, no material was disclosed as against petitioners, learned Magistrate should not have taken cognizance of the offence on Annexure I complaint. 4. On hearing the learned counsel, I cannot agree with the submission that for the reason that Annexure II final report was accepted and cognizance was taken against the husband, learned Magistrate cannot take cognizance of the offence against petitioners on a protest complaint filed by the first respondent he is satisfied of a prima facie case. When a final report is submitted stating that one of the accused committed the alleged offence, no notice will be issued by the learned Magistrate, to the de facto complainant. Crl.M.C.4294/2010 4 So first respondent has no opportunity to oppose the findings or acceptance of Annexure III final report as such. In Annexure I complaint first respondent specifically alleged the ingredients of the offence as against the petitioners. It is after satisfying on the inquiry conducted under section 202 of Code of Criminal Procedure, learned Magistrate has taken cognizance. It cannot be said that cognizance taken is illegal. Petitioners are at liberty to raise all the contentions including the absence of specific allegations in Annexure II complaint originally filed against the petitioners. Petitioners are entitled to cross examine the witnesses to be examined under section 244 of Code of Criminal Procedure and seek an order of discharge under section 245(1) of Code of Criminal Procedure. If petitioners file an application to dispense with their presence for the purpose of claiming discharge under section 245(1) of Code of Criminal Procedure or recording the evidence under section 244 of Code of Criminal Crl.M.C.4294/2010 5 Procedure, learned Magistrate not to insist for their presence. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006