IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 18TH JANUARY 2010 / 28TH POUSHA 1931 Crl.MC.No. 3660 of 2009(F) ------------------------------------- CP.NO.50/2009 OF JUDL.MAGISTRATE OF FIRST CLASS-I, MUVATTUPUZHA. .................... PETITIONERS/ACCUSED: ------------------------------------ 1. RAFEEK, S/O. AZEE, THACHETHU HOUSE, PAIPPRA KARA, MUVATTUPUZHA. 2. AZEE, THACHETHU HOUSE, PAIPPRA KARA, MUVATTUPUZHA. BY ADVS. MR.P.VIJAYA BHANU, MR.M.REVIKRISHNAN. RESPONDENTS/COMPLAINANT AND STATE: ---------------------------------------------------------------- 1. SHAFI, S/O. ABDUL RASHEED, EZHUTHANIKATTU HOUSE, PAIPPRA KARA, MUVATTUPUZHA. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR MR.S.U. NAZAR, R1 BY ADV. MR.N.N.ELAYATH. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 18/01/2010,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. M.SASIDHARAN NAMBIAR,J. ------------------------------------------ Crl.M.C.NO.3660 OF 2009 ------------------------------------------ Dated 18th January 2010 O R D E R Petitioners are the accused in C.P.50/2009 on the file of Judicial First Class Magistrate-I, Muvattupuzha. A final report alleging commission of the offence against two accused was filed before the learned Magistrate, in crime No.1382/2008 of Muvattupuzha police station, first respondent filed a private complaint which was taken cognizance for the offences under Sections 341, 323 and 308 read with section 34 of Indian Penal Code and summons was issued to the petitioners. They filed this petition under section 482 of Code of Criminal Procedure to quash the order taking cognizance. Crmc 3660/09 2 2. Learned counsel appearing for the petitioners and learned counsel appearing for the first respondent were heard. 3. Argument of the learned counsel appearing for the petitioners is that Annexure-A complaint filed before the Magistrate shows that first respondent had cited five witnesses, including a doctor, to be examined on his side apart from himself and Annexure-C proceeding paper shows that only three of the said witnesses were examined and an additional witness was subsequently examined, though he was not one among the witnesses as per the witness list and when the first respondent has no case that additional witness was present at the time of the incident, learned Magistrate cannot rely on his sworn statement for taking cognizance of Crmc 3660/09 3 the offences. Learned counsel also argued that when an offence under Section 308 is exclusively triable by the Sessions court as mandated under proviso 2 to Section 202 of Code of Criminal Procedure the Magistrate is bound to take evidence on oath of all the witnesses and when the doctor was not examined, on that sole reason the cognizance taken is to be quashed. Learned counsel also argued that when there is nothing in the evidence of the other two witnesses, as against the petitioners, learned Magistrate should not have taken cognizance of the offence as against them, especially when after investigation it was found that petitioners had committed offences. 4. Learned counsel appearing for first respondent argued that the doctor who Crmc 3660/09 4 was omitted to be examined, was also a witness in the police charge sheeted case and therefore, it is not necessary to examine the doctor, especially when the wound certificate is produced. Learned counsel also argued that when the learned Magistrate exercised his discretion and had taken cognizance of the offence and issued summons, it is not for this court to substitute the discretion and quash the cognizance taken and the question is to be decided only on evidence after trial. 5. Though fourth additional witness examined by the learned Magistrate, was not one among the witnesses to be examined shown in the witness list appended to Annexure-A complaint, proceeding paper shows that on 6/8/2009 first respondent had filed a petition to re-open the evidence and for permission to Crmc 3660/09 5 examine the said witness and it was allowed by the learned Magistrate recording that in the interest of justice statement of the witness is to be recorded. In such circumstances, I find no illegality or irregularity in examination of an additional witness, who was originally shown in the complaint. 6. Though learned counsel argued that as the other three witnesses who were examined by the first respondent, did not give any evidence as against the petitioners and the last witness who was subsequently examined had given statements against the petitioners it is due to the previous enmity with him and in such circumstances, his statement should not have been taken into consideration. But that is not a matter to be considered at this Crmc 3660/09 6 stage, in a petition filed under Section 482 of Code of Criminal Procedure. Even without corroboration, if statement of the complainant is sufficient and inspires confidence on the learned Magistrate, he can take cognizance of the offence on evidence of the complainant. Therefore, on that ground cognizance taken cannot be quashed. 7. But there is force in the submission of the learned counsel that when all the witnesses to be examined in the case were not examined and their evidence was not recorded as mandated under second proviso to Sub Section 2 of Section 202 of Code of Criminal Procedure, cognizance taken by the learned Magistrate can only be quashed. It is seen that the doctor who was cited as fifth witness, was not examined. Fact that wound Crmc 3660/09 7 certificate was produced, is not a substitute for the evidence to be recorded as provided under proviso 2, to Section 202 of Code of Criminal Procedure. Petition is allowed. Cognizance taken by Judicial First Class Magistrate-I, Muvattupuzha in C.P.50/2009, as per order dated 26/9/2009 is quashed. Learned Magistrate is directed to examine all the witnesses to be examined on the side of the first respondent as mandated under proviso 2 to Section 202 of Code of Criminal Procedure and then dispose the complaint in accordance with law. M.SASIDHARAN NAMBIAR, JUDGE. uj.