IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 7TH MARCH 2011 / 16TH PHALGUNA 1932 Crl.MC.No. 4517 of 2010() ------------------------------ CC.304/2010 of JUDL. MAGISTRATE OF FIRST CLASS-II, PERAMBRA .................... PETITIONER(S): ACCUSED NO.1 ------------------------------------- ANIL CHANDRAN,S/O.P.G.CHANDRASEKHARAN, AGED 40 YEARS,DEVAM,KODUVATTUPOYIL,CHEVAYUR DESOM, KOZHIKODE. BY ADVS. SRI.GEO PAUL SRI.SANU MATHEW SRI.C.R.PRAMOD SRI.NOEL JOSEPH SRI.M.B.SANDEEP SMT.P.T.RAZEENA SRI.REJANISH K.V. RESPONDENT(S): STATE & COMPLAINANT ------------------------------------------------- 1. STATE OF KERALA,REPRESENTED BY S.I.OF POLICE,BALUSSERY POLICE STATION,BY P.PROSECUTOR, HIGH COURT OF KERALA. 2. P.C.VENUGOPALAN NAIR,AGED 56 YEARS, S/O.P.G.CHANDRASEKHARAN NAIR,MADAKKUNNU VEEDU, VAYALADA.P.O,UNNIKULAM,KOZHIKODE-673574. R1 BY PUBLIC PROSECUTOR SRI.K.J.MOHAMMEDANZAR R2 BY ADV. SRI.E.NARAYANAN THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 07/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: svs THOMAS P JOSEPH, J. ---------------------------------------- Crl.M.C.No.4517 of 2010 --------------------------------------- Dated this 07th day of March, 2011 ORDER This petition is filed by the accused in C.C.No.304 of 2010 of the Court of learned Judicial First Class Magistrate-II, Perambra. Second respondent filed a private complaint against petitioner alleging commission of offences punishable under Sec.420 325, 379, 294(b), 427 and 506(ii) r/w Sec.149 of the Indian Penal Code. That complaint was forwarded to the police for investigation. The police registered Crime No.342 of 2008 and submitted Annexure-A3, refer report. Second respondent filed Annexure-A1, protest complaint. Second respondent and two witnesses were examined. Annexure-A6 is the statement of second respondent/complainant recorded through an Advocate Commissioner. Learned Magistrate, based on the materials took cognizance against petitioner as per Annexure-A7, order which is under challenge. According to the petitioner procedure adopted by learned Magistrate in recording statement of second respondent is illegal and against the provisions of Secs.284 to 286 of the Code of Criminal Procedure (for short, "the Code”). It is also the contention of petitioner that second respondent is an abnormal person having hallucinations and hence was not Crl.M.C.No.4517 of 2010 -: 2 :- competent to give a statement. I have heard learned counsel for second respondent and learned Public Prosecutor. Learned counsel for second respondent denied the allegation that second respondent is abnormal. 2. Under Sec.284 of the Code, it is only the examination of a witness which could be recorded through commission. The said provision does not contemplate examination of the complainant on commission. Going by Secs.284 to 286 of the Code examination on commission has to be made by the Magistrate as referred to in Sec.286 of the Code. This court in Shahul Hameed Vs. Nabeesa Beevi (2010(3) KLT 283) also has stated so. In the circumstance learned Magistrate has committed an illegality in allowing the statement of respondent No.2/complainant to be recorded through commission and that too, through an advocate. Cognizance taken on the basis of Annexure-A6, statement is illegal and cannot stand. 3. So far as contention regarding alleged abnormality of the second respondent is concerned I do not wish to enter into any decision on that issue in this proceeding. Resultantly this petition is allowed. Annexure-A7, order taking cognizance against petitioner on Annexure-A1,complaint is Crl.M.C.No.4517 of 2010 -: 3 :- set aside and the complaint is remitted to the Court of learned Judicial First Class Magistrate-II, Perambra for further inquiry in the matter and in the light of the observations made above pass appropriate orders in the matter of cognizance as provided under law. (THOMAS P JOSEPH, JUDGE) Sbna/- /True Copy/ P.A to Judge