IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN TUESDAY, THE 22ND NOVEMBER 2011 / 1ST AGRAHAYANA 1933 Crl.MC.No. 3487 of 2011(A) -------------------------------------- [CC.NO.73/2011 OF JUDICIAL MAGISTRATE OF FIRST CLASS COURT, TALIPARAMBA] .................... PETITIONERS/1ST & 2ND ACCUSED: ---------------------------------------------------- 1. M.J.JOSEPH, S/O.JOSEPH,AGED 75 YEARS, MANNUR HOUSE,ALAKODE AMSOM,ARANGAM DESAM,KANNUR. 2. JOJO JOSEPH, S/O.JOSEPH,AGED 45 YEARS, MANNUR HOUSE,ALAKODE AMSOM,ARANGAM DESAM,KANNUR. BY ADVS. SRI.SUNIL NAIR PALAKKAT, SRI.K.N.ABHILASH, SMT.R.LEELA. RESPONDENTS/COMPLAINANT/STATE: --------------------------------------------------------- 1. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. 2. THE STATION HOUSE OFFICER, ALAKODE POLICE STATION, ALAKODE,KANNUR- 670 571. 3. RAJU JAMES, S/O. JAMES,AGED 43 YEARS, CHERAMARTHUNGAL HOUSE, ALAKODE AMSOM,ARANGAM DESAM, KANNUR- 670 571. R1 & R2 BY PUBLIC PROSECUTOR SRI. RAJESH VIJAYAN, R3 BY ADVS. SRI.V.A.SATHEESH, SRI.V.T.MADHAVANUNNI, SRI.J.ABHILASH. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 22/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.M.C. NO.3487/2011-A: APPENDIX PETITIONERS' ANNEXURES- ANNEXURE A1: THE CERTIFIED COPY OF THE REFER REPORT DATED 22/9/2008 ISSUED IN CR.NO.264/2008 BY 2ND RESPONDENT. ANNEXURE A2: THE TRUE COPY OF THE FIR DATED 29/8/2008 NO-247/2008 OF THE ALAKODE POLICE STATION. ANNEXURE A3: THE CERTIFIED COPY OF THE COMPLAINT DATED 5/11/2008 IN C.C. 73/2011 OF THE JFCM THALIPARAMBA. RESPONDENTS' ANNEXURES:- NIL. //TRUE COPY// P.A. TO JUDGE Prv. N.K.BALAKRISHNAN, J. -------------------------------- Crl.M.C. No.3487 of 2011 ----------------------------------- Dated this the 22nd day of November 2011 O R D E R Petitioners are accused Nos.1 and 2 in C.C.No.73/2011 of J.F.C.M., Thaliparamba. A complaint was filed by the 3rd respondent alleging offences punishable under Secs.427, 341 and 506(ii) IPC. The gist of the allegation is that on 28.8.2008, petitioners cut down trees standing by the side of the road. Petitioners now contend that the trees belong to them. The learned counsel for the petitioners submits that there is a report of the Village Officer in support of that. No such document was produced before the learned Magistrate. The complaint filed by the 3rd respondent was forwarded to the police under Sec.156(3) Cr.P.C. After conducting investigation final report was filed referring the case as false. Thereupon the 3rd respondent filed a Protest complaint. It is submitted that the complainant and one witness were examined by the learned Magistrate under Sec.202 Cr.P.C. and thereafter cognizance was taken. The learned counsel for the petitioner submits that the learned Magistrate Crl.M.C. No.3487 of 2011 -: 2 :- has not applied his mind while taking cognizance of the case. 2. The learned counsel for the 3rd respondent would submit that the police referred the case as false without adverting to any of the aspects. The fact that the cut trees were situated just by the side of the road and those trees were not the properties of the accused were not at all considered by the Investigating Officer and as such the court below was perfectly justified in ignoring the final report filed by the police. 3. The sworn statements of the complainant and the witnesses have not been produced. The order taking cognizance has also not been produced. 4. The learned Magistrate has not considered the fact that the case was referred by the police as false. The cognizance was taken based on the protest complaint and the sworn statements of the complainant and one witness. 5. The learned Magistrate has to go through the Crl.M.C. No.3487 of 2011 -: 3 :- 'Refer Court' and if necessary can go through the documents pertaining to the property where from the trees were cut, to find whether there are sufficient materials to proceed against the accused and to take cognizance of the offence. Therefore, the order taking cognizance of the case as C.C.No.73/2011 is set aside. The learned Magistrate will re-consider the issue. The documents, if any produced or other witnesses if examined shall also be taken into consideration by the learned Magistrate at the appropriate stage. This Crl.M.C. is disposed of as above. N.K.BALAKRISHNAN, JUDGE. Jvt