IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 14TH OCTOBER 2009 / 22ND ASWINA 1931 Crl.MC.No. 1292 of 2008 --------------------------------------- CC.614/2006 of JUDL.MAGISTRATE OF FIRST CLASS, KOLENCHERRY .................... PETITIONERS/ACCUSED: 1. MATHAI, S/O. YOHANNAN, THANNICODE HOUSE, KAITHAKKAD KARA, PATTIMATTOM VILLAGE. 2. JOHN, S/O. YOHANNAN, DO. DO. 3. VARGHESE, S/O. YOHANNAN, DO. DO. BY ADV. SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ RESPONDENTS/COMPLAINANT & STATE: 1. VIJAYAMMA, W/O. KUMARAN, VATTAKKUMMEL HOUSE, PATTIMATTOM KARA, PATTIMATTOM VILLAGE. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.S.U.NAZAR FOR R2 ADV.SRI.RAJESH VIJAYAN FOR R1 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 14/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.1292 of 2008 -------------------------- ORDER Petitioners are the accused in C.C.No.614/2006 on the file of Judicial First Class Magistrate's Court, Kolencherry, taken cognizance by the learned Magistrate for the offences under Sections 452, 323, 324, 294(b), 354 and 427 read with Section 34 of Indian Penal Code on Annexure-B protest complaint filed by the first respondent, the defacto complainant, after Annexure-A refer report was submitted by the Sub Inspector on investigation. This petition is filed under Section 482 of Code of Criminal Procedure to quash the cognizance taken on Annexure-B protest complaint. 2. Learned counsel appearing for the petitioners and first respondent were heard. 3. Based on the first information statement of the first respondent, recorded by the police, Crime No.63/2006 of Kunnathunadu Police Station was registered for the offences under Sections 452, 323, 324, 294(b), 354 and 427 read with Section 34 of Indian CRMC 1292/08 2 Penal Code. After investigation, Annexure-A refer report was submitted stating that the allegations raised by the first respondent are false and the incident, as alleged, did not take place. First respondent, thereafter, filed Annexure-B protest complaint reiterating the earlier allegations. Though it is filed as a protest complaint and it contains an allegation that police submitted the refer report without proper investigation, findings in the refer report were not seen challenged or contradicted in Annexure-B complaint. Learned Magistrate took cognizance of the offences after recording the sworn statement of the first respondent and two witnesses. 4. Learned counsel appearing for the petitioners made available copies of the sworn statements of the first respondent and her witnesses and argued that the incident alleged is false and in such circumstances, it is only an abuse of process of the Court. It is also pointed out that the case registered by the police against the first respondent, in respect of the very same incident, ended in conviction and in such circumstances, continuation of the proceedings is only CRMC 1292/08 3 an abuse of process of the court. 5. Learned counsel appearing for the first respondent submitted that an appeal is pending against the conviction and based on the conviction, the case as against the petitioners cannot be quashed. Learned counsel also argued that even though Annexure-C wound certificate does not disclose any external injuries, the allegations in Annexure-B complaint, supported by the sworn statements of first respondent and her witnesses, prima facie, show commission of the offences and therefore, the case as against the petitioners cannot be quashed. 6. What is alleged in Annexure-B complaint as well as stated by the first respondent at the time of recording of her sworn statement, supported by the witnesses, is that while first respondent opposed construction of a latrine pit near to her residential house, in furtherance of their common intention, petitioners threw a brick at her and it hit on her chest and when she was running towards the kitchen, another brick fell at her back and she somehow reached the kitchen and from there, she was beaten with a stick CRMC 1292/08 4 and her breast was also caught by the accused and thereby they committed offences as alleged. Annexure-C wound certificate shows that no trace of external injury could be found by the doctor at the time of her examination. The sworn statements of the first respondent show that dissatisfied with the treatment meted out at the first hospital, she had gone to Ernakulam General Hospital, from where, Annexure-C wound certificate was issued. If there was any external injury, it would have been definitely noted in Annexure-C wound certificate. If a brick was thrown by the petitioners and it had hit on the first respondent from a distance, definitely, there will be some external injury like abrasion or contusion. The history of the injury recorded in Annexure-C wound certificate does not contain an allegation that a brick was thrown at the first respondent or her breast was caught by any of the assailants. In such circumstances, I have no hesitation to hold that the allegations raised by the first respondent, supported by the witnesses, are not true. Moreover, when, after investigation, a refer report was submitted disclosing that the incident was CRMC 1292/08 5 not as alleged by the first respondent and it is a false case, without further material, contradicting the offences, learned Magistrate should not have taken cognizance of the offences as has been done in the case. Mechanically taking cognizance on a protest complaint can only be deprecated. The proceedings pending before the learned Magistrate is clearly an abuse of process of the court. To secure justice, it is to be quashed. The petition is allowed. C.C.No.614/2006 on the file of Judicial First Class Magistrate's Court, Kolencherry is quashed. 14th October, 2009 (M.Sasidharan Nambiar, Judge) tkv