IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 28TH JANUARY 2010 / 8TH MAGHA 1931 Crl.MC.No. 1082 of 2009() ------------------------- CC.248/2008 of JUDL.MAGISTRATE OF FIRST CLASS COURT, KUTHUPARAMBA .................... PETITIONER(S): 3 TO 11 ACCUSED ----------------------------------------------- 1. SATHYAVRATHAN.N.N., AGED 47, S/O.NANU (LATE), NELLIKUNNEL HOUSE, MANDAMCHERIMALA KOTTIYOOR AMSOM DESOM. 2. MADHU.N.N., S/O.NANU, AGED 44, WORKING AS A TAILOR, NELLIKUNNEL HOUSE, THOLAMBRA AMSOM DESOM, P.O.THOLAMBRA. 3. SASINDHRAN KALATHIL, AGED 48, AMBAYATHODE, KOTTIYOOR AMSOM DESOM, P.O.AMBAYATHODE, KANNUR DISTRICT, THALASSERY TALUK. 4. SARASAMMA.N.N., AGED 50, W/O.SASINDHRAN, KALATHIL HOUSE, AMBAYATHODE, KOTTIYOOR AMSOM DESOM. 5. SATHYAN.K.K., WORKING AS A FARMER, AGED 50, KOLLAMOLEL HOUSE, VELLOOR VELLI AMSOM DESOM, P.O.VELOOR VELLI. 6. OMANA.N.N., AGED 46, W/O.SATHYAN.K.K., KOLLAMOLEL HOUSE, VELLOOR VELLI AMSOM DESOM, P.O.VELLOOR VELLI. 7. SHEEJA, W/O.MADHU, AGED 41, NELLIKUNNEL HOUSE, POTHUKUZHI, THOLAMBRA AMSOM DESOM, P.O.THOLAMBRA. 8. MUKUNDHAN, S/O.GOVINDHAN, AGED 44, NEAR WEST VELLOOR VELLI LIBRARY, P.O.VELLOOR VELLI. 9. RAMESHAN, S/O.GOVINDHAN, AGED 42, NEAR WEST VELLOOR VELLI LIBRARY, VELLOOR VELLI AMSOM DESOM, P.O.VELLOOR VELLI. BY ADV. SRI.SUNIL NAIR PALAKKAT SRI.K.N.ABHILASH SMT.R.LEELA SMT.N.K.SHEEBA RESPONDENT(S)COMPLAINANTS: ------------------------------------------------ 1. THE STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR OF THE HIGH COURT OF KERALA, ERNAKULAM. 2. K.N.SASEENDHARA, AGED 37, W/O.N.N.SURESH, KALLANANIYIL VELLUNNI P.O., KANNUR DISTRICT, THALASSERY TALUK. PUBLIC PROSECUTOR SRI. S.U. NAZAR THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 25/01/2010, THE COURT ON 28/01/2010 PASSED THE FOLLOWING: P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.M.C. No. 1082 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 28th day of January, 2010. ORDER This is a petition filed under Section 482 of the Code of Criminal Procedure seeking to have the further proceedings in C.C. No.248 of 2008 quashed. 2. The petitioners are accused Nos.3 to 11 in C.C. No.248 of 2008 on the file of the Judicial Magistrate of the First Class, Koothuparamba. A complaint was filed by the defacto complainant, which was forwarded to police for investigation under Section 156 (3) of the Cr.P.C. The offences alleged against the petitioners are offences punishable under Sections 494 and 109 read with Section 34 of Indian Penal Code. The police on receipt of records registered Crime No. 73 of 2007 on 16.4.2007. After investigation the police filed final report in C.C.248 of 2008 before JFCM, Koothuparamba. Petitioners would point out that going by Section 198 Cr.P.C., the learned Magistrate should not have Crl.M.C. 1082/2009 2 taken cognizance on a police report. Summons issued to the petitioners on the final report filed by the police after taking cognizance thereon is not sustainable in law. 3. Learned counsel appearing for the petitioners placed reliance on the decision reported in Madhu v. Sasindhra (2000 (2) KLT 112). 4. Learned Public Prosecutor, who was heard in the matter has no answer to the contentions raised by the petitioners. He was unable to find support to show that the action taken by the Magistrate is correct. 5. Notice issued to the second respondent was returned with the endorsement 'refused'. 6. Section 198 Cr.P.C. reads as follows: “198. Prosecution for offences against marriage.- (1) No Court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code (45 of 1860) except upon a complaint made by some person aggrieved by the offence: Crl.M.C. 1082/2009 3 Provided that- (a) where such person is under the age of eighteen years, or is an idiot or a lunatic, or is from sickness or infirmity unable to make a complaint, or is a woman who, according to the local customs and manners, ought not to be compelled to appear in public, some other person may, with the leave of the Court, make a complaint on his or her behalf; (b) where such person is the husband and he is serving in any of the Armed Forces of the Union under conditions which are certified by his Commanding Officer as precluding him from obtaining leave of absence to enable him to make a complaint in person, some other person authorised by the husband in accordance with the provisions of sub-section (4) may make a complaint on his behalf; (c) where the person aggrieved by an offence punishable under section 494 or section 495 of the Indian Penal Code (45 of 1860) is the wife, complaint may be made on her behalf by her father, mother, brother, sister, son or daughter or by her father's or Crl.M.C. 1082/2009 4 mother's brother or sister, or with the leave of the Court, by any other person related to her by blood, marriage or adoption.” (rest is omitted as unnecessary) A reading of the above provision shows that cognizance of an offence under Section 494 can be taken only on a complaint. It is well settled that when a particular statutory provision provides that congizance can be taken only on a complaint, the presentation of a complaint is absolutely necessary. 7. Of course, in a case where the cognizance of an offence can be taken only on a complaint, if the complaint is sent for investigation under Section 156(3) of the Cr.P.C., after receiving the final report the Magistrate can still take cognizance on the original complaint and use the materials collected by the police for enquiry under Section 202 Cr.P.C.. However, in the case on hand cognizance had been taken on the report of the police, that is barred under Section 173(2) of the Cr.P.C.. That is illegal. Whether the Magistrate could take cognizance on the original complaint in this case need not be considered in this Crl.M.C. 1082/2009 5 proceedings, since the petitioners have specifically stated that the case has been taken on file on the basis of the final report filed by the police. In the result, this petition is allowed and further proceedings in C.C.248 of 2008 before the Judicial First Class Magistrate, Koothuparamba stands quashed. P. BHAVADASAN, JUDGE sb.